Exhibit 10.18
11728.18700.386231-7
LOAN AND SECURITY AGREEMENT
(ADC LOANS WAREHOUSE FACILITY)
This LOAN AND SECURITY AGREEMENT (ADC LOANS WAREHOUSE FACILITY) is made
and entered into as of September 30, 1999, by and among RESORT FUNDING, INC., a
Delaware corporation ("Borrower"), and FINOVA CAPITAL CORPORATION, a Delaware
corporation ("Lender").
In consideration of the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties to this Agreement, intending to be legally
bound, hereby agree as follows:
SECTION
1. DEFINITION OF TERMS
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The capitalized terms used in this Agreement are defined in this Section
1. The definitions include the singular and plural forms of the terms defined.
1.1 Advance. A portion of the proceeds of the Loan advanced from time to
time by Lender to Borrower in accordance with the terms of this Agreement.
1.2 Affiliate.
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(a) Any shareholder, officer, director, general partner, or member of
Borrower; and
(b) Any Person that, directly or indirectly, through one (1) or more
intermediaries, controls, is controlled by, or is under common control with
Borrower or for which any other Affiliate of Borrower is an officer, director,
shareholder, general partner, or member. For purposes of the definition of
"Affiliate:" (i) a Person shall be presumed to be in control of a corporation if
that Person, either alone or pursuant to an arrangement or understanding with
one (1) or more other Persons, (A) owns, controls, or has the power to vote
(including by proxy) greater than fifty percent (50%) of any class of voting
securities of such corporation or that determines in any manner the election or
appointment of a majority of the directors thereof; or (B) has the power or
practical ability to exercise a controlling influence over the management or
policies of such corporation; and (ii) a Person shall be deemed to be in control
of a Person other than a corporation if that Person, either alone or pursuant to
an arrangement or understanding with one (1) or more other Persons, (A) owns,
controls, or has the power to vote (including by proxy) greater than fifty
percent (50%) of the equity or beneficial interest of such Person; or (B) has
the power or practical ability to exercise a controlling influence over the
management or policies of such Person.
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11728.18700.386231-7
1.3 Agreement. This Loan and Security Agreement (ADC Loans Warehouse
Facility) by and among Borrower and Lender (including the exhibits and schedules
hereto), as it may be amended and/or restated from time to time.
1.4 Applicable Approved Construction Budget. The budget relating to the cost of
the Financed Improvements at a particular Applicable Resort in form and substance
acceptable to Lender.
1.5 Applicable Approved Construction Schedule. The schedule relating to the time
frame for construction of the Financed Improvements at a particular Applicable Resort in
form and substance acceptable to Lender.
1.6 Applicable Borrowing Base Percentage. One hundred percent (100%).
1.7 Applicable Declaration. With respect to an Applicable Resort, the
declaration of condominium, declaration of covenants, conditions, and
restrictions, master deed, or similar document, together with any amendments or
restatements thereof, that establishes the underlying form of ownership of such
Applicable Resort and is recorded in the appropriate public records of the
Applicable Jurisdiction.
1.8 Applicable Jurisdiction. With respect to an Applicable Resort, the state,
county, municipality, and/or other governmental jurisdiction in which such Applicable
Resort is located.
1.9 Applicable Laws. With respect to an Applicable Resort, any and all
federal, state, and local statutes, ordinances, rules, regulations, court orders
and decrees, administrative orders and decrees, and other legal requirements of
any and every conceivable type to which Borrower, Guarantor, such Applicable
Resort or any portion thereof, or all or any portion of the Collateral or any
Applicable Underlying Loan Collateral is or becomes subject from time to time.
1.10 Applicable Mortgage. A mortgage or deed of trust, if any, that
creates a valid and enforceable first priority lien against the Mortgaged Real
Property identified therein and secures the payment by an Applicable Underlying
Borrower of all principal, interest, and other amounts owed to Borrower by such
Applicable Underlying Borrower in connection with an Applicable Underlying Loan.
1.11 Applicable Resort. A Qualified Resort in connection with which Borrower has
made a Qualified Loan to a Qualified Borrower.
1.12 Applicable Timeshare Documents. All Applicable Declarations and other
documents and instruments relating to an Applicable Resort and/or the Units,
Common Elements, Common Furnishings, and Intervals thereat, including but not
limited to the project documents, registrations or other approvals, business
licenses, Interval owners' association agreements and corporate documents,
budgets, and other documents used in the marketing, sale, and financing of such
Intervals. Each Applicable Timeshare Document shall be in form and content
acceptable to Lender. Lender shall have received and approved true, correct, and
complete copies of all Applicable Timeshare Documents as a condition precedent
to any Advances hereunder in respect of the Applicable Resort to which such
Applicable Timeshare Documents pertain.
1.13 Applicable Underlying Borrower. A Qualified Borrower that is the maker of a
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Pledged Note Receivable.
1.14 Applicable Underlying Guarantor. Any Person that has executed and delivered
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an Underlying Guaranty in favor of Borrower in connection with an Applicable Underlying
Loan.
1.15 Applicable Underlying Loan. A Qualified Loan as to which Lender has agreed
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to make certain Advances hereunder.
1.16 Applicable Underlying Loan Collateral. Any and all collateral granted
or available to Borrower to secure the payment by an Applicable Underlying
Borrower of all principal, interest, and other amounts owed to Borrower by such
Applicable Underlying Borrower in connection with an Applicable Underlying Loan.
1.17 Applicable Underlying Loan Documents. All documents and instruments
that evidence or secure an Applicable Underlying Loan, including but not limited
to any Notes Receivable, Applicable Mortgages and Underlying Guarantees executed
and delivered to Borrower in connection therewith, together with the Applicable
Approved Construction Schedule and Applicable Approved Construction Budget. The
form and content of each Applicable Underlying Loan Document shall be
satisfactory to Lender and approved by Lender in writing prior to any Advances
hereunder in respect of the Applicable Underlying Loan to which such Applicable
Underlying Loan Document pertains. Lender has approved the forms of Applicable
Underlying Loan Documents identified in a letter from Lender to Borrower dated
as of even date herewith. Borrower agrees not to amend, restate, or otherwise
modify any Applicable Underlying Documents in a material manner without Lender's
prior written consent. Copies of any such amended, restated, or otherwise
modified Applicable Underlying Loan Document, as so approved by Lender and fully
executed and delivered by Borrower, shall be provided to Lender and Verification
Agent promptly following the effective date thereof.
1.18 Approved Costs. Defined in Section 4.2(m) hereof.
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1.19 Architect. A licensed architect in an Applicable Jurisdiction who is
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acceptable to Lender.
1.20 Borrower. Resort Funding, Inc., a Delaware corporation, together with its
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successors and assigns.
1.21 Borrowing Base. With respect to an Applicable Underlying Loan and the
related Eligible Note Receivable, an amount equal to the product of the
Applicable Borrowing Base Percentage times the lesser of (a) the outstanding
principal balance thereof as of the date of any Advance by Lender in respect
thereof; and (b) ninety percent (90%) of the fair market value of the Applicable
Underlying Loan Collateral that secures such Eligible Note Receivable as
determined by the appraisal referenced in Section 4.2(k) hereof, the form and
substance of which shall be satisfactory to Lender, as such appraisal may be
updated from time to time, at Borrower's sole cost and expense, upon the
reasonable request of Lender in the event that a Default, pursuant to Section
7.2 hereof, has occurred or if Lender, in good faith, believes that such a
Default is likely to occur. Notwithstanding the foregoing or any other term,
provision, or condition hereof to the contrary, under no circumstances shall the
weighted average of the Loan-to-Value Ratios of all Applicable Underlying Loans
ever exceed ninety percent (90%) (the "Maximum Weighted Average").
1.22 Borrowing Term. A period of twenty-four (24) calendar months
following the earliest of the date of the initial Advance, the date of the
initial advance under the RFI Receivables Credit Facility or October 31, 2001.
1.23 Business Day. Each day that is not a Saturday, a Sunday, or a legal holiday
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under the laws of the State of New York or the United States.
1.24 Closing Date. The date of this Agreement.
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1.25 Code. The version of the Uniform Commercial Code in effect from time
to time in an Applicable Jurisdiction, as amended from time to time.
1.26 Collateral. Collectively, the Pledged Notes Receivable, together with
all accounts, chattel paper, general intangibles, instruments and investment
property related thereto and the cash and non-cash proceeds thereof, and all now
owned or hereafter acquired right, title, and interest of Borrower in and to all
Applicable Underlying Loan Collateral for any and all of the Pledged Notes
Receivable, including but not limited to the following (to the extent
applicable):
(a) The Applicable Mortgages;
(b) First priority Liens in and to any and all Encumbered Personal
Property, together with the cash and non-cash proceeds thereof, with appropriate
non-disturbance language relating to common area furniture, furnishings,
equipment, and fixtures;
(c) Absolute and unconditional first assignments of any and all
leases, subleases, licenses, concessions, entry fees, and other agreements that
grant a possessory interest in and to, or the right to use, any Mortgaged Real
Property, Encumbered Intervals, Encumbered Personal Property, or any portion
thereof (collectively, the "Resort Leases");
(d) Absolute and unconditional first assignments of all of the
rents, revenues, income, proceeds, royalties, profits, and other amounts payable
for using, leasing, licensing, possessing, operating from or in, or otherwise
enjoying all or any portion of any Mortgaged Real Property, Encumbered Personal
Property, or Encumbered Intervals, including, without limitation, damages
received upon the occurrence of a default under any of the Resort Leases and all
proceeds payable under any policy of insurance covering loss of rents with
respect thereto (collectively, the "Resort Income");
(e) Absolute and unconditional first assignments of all other
agreements to which any Applicable Underlying Borrower is or becomes a party or
holds any interest and which in any way relate to the use, occupancy,
maintenance, or enjoyment of any Mortgaged Real Property, Encumbered Personal
Property, or Encumbered Intervals, including but not limited to utility
contracts, maintenance agreements, management agreements, service contracts, and
any agreement guaranteeing the performance of the obligations contained in any
of the foregoing agreements;
(f) First priority assignments of all of Borrower's rights in and to
all Plans, all agreements for the furnishing of architectural, engineering,
and/or design services, and all construction contracts and other agreements for
the furnishing of labor and/or materials in connection with the development and
construction of the Financed Improvements;
(g) First priority assignments of all of Borrower's rights in and to
any and all easements, contracts, leasehold interests (whether as lessor or
lessee), permits, licenses, and approvals in respect of all or any portion of an
Applicable Resort;
(h) First priority Liens in all inventory, supplies, accounts,
chattel paper, and general intangibles owned or hereafter acquired by Borrower
or any Underlying Borrower, used or useful in connection with, and placed or to
be placed on or under any of the Mortgaged Real Property, including but not
limited to the Units contained therein, and the Encumbered Intervals, together
with the cash and non-cash proceeds thereof;
(i) First priority Liens in and to all documents, instruments,
accounts, chattel paper, general intangibles and investment property relating to
the Pledged Notes Receivable and the other Collateral, including the cash and
non-cash proceeds thereof;
(j) First priority Liens in and to all books, records, reports,
computer tapes, computer disks, and software relating to all or any portion of
the Collateral;
(k) Extensions, additions, improvements, betterments, renewals,
substitutions, and replacements of, for, or to any of the Collateral, wherever
located, together with the products, proceeds, issues, rents, and profits
thereof and any replacements, additions, or accessions thereto or substitutions
thereof, and all rights in or under insurance policies and to the proceeds of
any insurance policies covering any of the other Collateral, all rights to
unearned or refunded insurance premiums, and the proceeds of any condemnation
awards or any claims regarding any of the other Collateral; and
(l) All now owned or hereafter acquired right, title, and interest
of Borrower in and to any and all of the collateral for the RFI Receivables
Credit Facility and any other timeshare-related loan or credit facility between
Lender and Borrower or an Affiliate of Borrower.
1.27 Combined Outstanding Commitments. The sum of the Outstanding RFI Receivables
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Credit Facility Commitment and the Outstanding RFI ADC Credit Facility Commitment (as
defined in the RFI Receivables Credit Facility Agreement).
1.28 Common Elements. The common areas and facilities as shown on the
Plans for each Applicable Resort, as defined or provided for in the Applicable
Declaration and/or other Applicable Timeshare Documents, including, without
limitation, the Land and all improvements thereto except for the Units that have
been dedicated to the condominium or comparable form of ownership, as well as
any limited common elements, as those terms are defined and used in the
Applicable Declaration.
1.29 Common Furnishings. All furniture, furnishings, fixtures, appliances,
carpeting, and equipment located in a Unit or elsewhere within an Applicable
Resort and available for use by Purchasers in accordance with the terms and
conditions of the Applicable Timeshare Documents.
1.30 Construction Contract. Defined in Section 4.2(l) hereof.
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1.31 Custodial Agreement. The custodial agreement, if any, from time to
time entered into and in effect between Lender, Borrower and Custodian and in
form and substance satisfactory to Lender, pursuant to which Custodian will
maintain custody of all original Applicable Underlying Loan Documents and take
certain actions in connection therewith.
1.32 Custodian. Such Person (including, without limitation, FINOVA
Portfolio Services, Inc., an Arizona corporation and a wholly-owned subsidiary
of Lender), if any, as Lender, in its discretion, engages from time to time, at
Borrower's sole cost and expense, to maintain custody of all original Applicable
Underlying Loan Documents and take certain actions in connection therewith.
1.33 Debtor Relief Laws. Any applicable liquidation, conservatorship,
receivership, bankruptcy, moratorium, rearrangement, insolvency, reorganization,
or similar law, proceeding, or device providing for the relief of debtors from
time to time in effect and generally affecting the rights of creditors.
1.34 Default. An Event of Default or an event or condition, the occurrence
of which, with the lapse of time or the giving or notice or both, would become,
an Event of Default.
1.35 Default Rate. The Interest Rate plus five percent (5%) per annum;
provided, however, that the Default Rate shall in no event exceed the highest
interest rate permitted to be charged under any applicable usury laws.
1.36 Draw Request. Defined in Section 4.3 hereof.
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1.37 Eligible Note Receivable. A Pledged Note Receivable that satisfies each of
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the following criteria:
(a) The Applicable Underlying Loan that it evidences was originated by
Borrower in the ordinary course of its business;
(b) Advances by Borrower under such Note Receivable may be used by
the Applicable Underlying Borrower solely for purposes of acquiring, developing,
constructing, or improving a Qualified Resort;
(c) The Applicable Underlying Loan Documents have been approved in writing
by Lender;
(d) Borrower is the sole payee;
(e) It is secured by an Applicable Mortgage;
(f) Principal and interest payments on it are payable to Borrower in legal
tender of the United States;
(g) It provides for the payment to Borrower of interest at a minimum
rate of interest approved in writing by Lender at the time it has designated the
Applicable Underlying Loan as a Qualified Loan.
(h) Neither the Applicable Underlying Borrower nor the Applicable
Underlying Guarantor, if any, is an Affiliate of Borrower or Guarantor;
(i) The Applicable Underlying Loan Documents provide for accelerated
partial releases from the Lien of the Applicable Mortgage which (i) are no less
than a percentage of the Applicable Underlying Borrower's cost basis in the Unit
or Interval being released approved by Lender at the time it has designated the
Applicable Underlying Loan as a Qualified Loan and (ii) which shall cause the
Applicable Underlying Loan to be repaid in full when no more than ninety percent
(90%) of the Encumbered Intervals have been sold;
(j) It requires such minimum amortization of principal as Lender shall deem
sufficient and approve in writing;
(k) No monthly installment or other amount due with respect to the
Note Receivable is more than thirty (30) days' contractually past due at the
time of its pledge to Lender hereunder, and no such monthly installment becomes
more than sixty (60) days' contractually past due thereafter;
(l) Neither the Applicable Underlying Borrower nor the Applicable
Underlying Guarantor, if any, has any claim against Borrower, Guarantor, or any
Affiliate thereof, and no defense, set-off, or counterclaim exists with respect
to the Note Receivable at the time of any Advance in respect thereof; and
(m) The original of the Note Receivable and all related documents
and instruments, the terms of each of which shall comply fully with all
Applicable Laws, have been endorsed in the manner prescribed by Lender and
delivered to Custodian.
1.38 Encumbered Interval. Any Interval that is encumbered by the Lien of an
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Applicable Mortgage, whether or not the applicable mortgagee has executed a
non-disturbance or subordination agreement in connection therewith.
1.39 Encumbered Personal Property. All furniture, furnishings, fixtures,
appliances, equipment, inventory, supplies, accounts, chattel paper, and general
intangibles at any time located at, arising out of the use of, and/or used or
useful in connection with the management or operation of any Mortgaged Real
Property, whether now owned or hereafter acquired by Borrower or an Applicable
Underlying Borrower, together with all improvements and accessions thereto and
replacements thereof and the cash and non-cash proceeds thereof, a Lien against
which constitutes Applicable Underlying Loan Collateral for a Pledged Note
Receivable.
1.40 Environmental Laws. The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time ("CERCLA"),
the Resource Conservation and Recovery Act of 1976, as amended from time to time
("RCRA"), the Superfund Amendments and Reauthorization Act of 1986, as amended,
the federal Clean Air Act, the federal Clean Water Act, the federal Safe
Drinking Water Act, the federal Toxic Substances Control Act, the federal
Hazardous Materials Transportation Act, the federal Emergency Planning and
Community Right to Know Act of 1986, the federal Endangered Species Act, the
federal Occupational Safety and Health Act of 1970, the federal Water Pollution
Control Act, and any and all comparable statutes or ordinances enacted in an
Applicable Jurisdiction, as all of the foregoing laws may be amended from time
to time, and any rules or regulations promulgated pursuant to the foregoing;
together with any similar local, state or federal statutes, ordinances, rules,
or regulations, either in existence as of the date hereof or enacted or
promulgated after the date of this Agreement, that concern the management,
control, storage, discharge, treatment, containment, removal, and/or transport
of Hazardous Materials or other substances that are or may become a threat to
public health or the environment; together with any common law theory involving
Hazardous Materials or substances that are (or are alleged to be) hazardous to
human health or the environment, based on nuisance, trespass, negligence, strict
liability, or other tortious conduct, or any other federal, state, or local
statute, ordinance, regulation, rule, policy, or determination pertaining to
health, hygiene, the environment, or environmental conditions.
1.41 Event of Default. Defined in Section 7 hereof.
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1.42 Financed Improvements. All Units, Common Elements, and other
buildings, structures, recreational facilities, and appurtenances thereto now
located on, or to be constructed on, any Mortgaged Real Property with the
proceeds of any Advances hereunder.
1.43 Financial Statements. The tax returns, balance sheets, and statements
of income and expense of Borrower and Guarantor and the related notes and
schedules delivered by Borrower prior to the Closing Date, together with the
financial statements and reports of Guarantor delivered to Lender prior to the
Closing Date; and the monthly and annual financial statements and reports
required to be provided to Lender pursuant to Section 6.1(g) hereof.
1.44 GAAP. Generally accepted accounting principles, applied on a
consistent basis, as described in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board which are applicable under the
circumstances as of the date in question.
1.45 Guarantor. Equivest Finance, Inc., a Delaware corporation, together with its
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successors and assigns.
1.46 Guaranty. That certain Guaranty and Subordination executed by
Guarantor and delivered to Lender concurrently with Borrower's execution and
delivery of this Agreement. The Guaranty shall be the absolute and unconditional
guaranty of payment and performance of the Loan and all amounts secured by or
under the Loan Documents.
1.47 Hazardous Materials. "Hazardous substances," "hazardous waste,"
"hazardous constituents," "toxic substances," or "solid waste," as defined in
the Environmental Laws, and any other contaminant or any material, waste, or
substance that is petroleum or petroleum based, asbestos, polychlorinated
biphenyls, flammable explosives, or radioactive materials.
1.48 Holdback Amount. An amount equal to a minimum of ten percent (10%) of
(a) the amounts due a General Contractor under a Construction Contract; and/or
(b) the amounts due to any subcontractor, materialman, or other Person under any
and all subcontracts or other agreements entered into in connection with the
construction of any Financed Improvements, which amount shall be retained by
Lender and Borrower as a holdback until such time as such Financed Improvements
have been one hundred percent (100%) completed in accordance with the applicable
Plans and all Applicable Laws, as certified in the manner provided in Section
4.3(f) hereof, and all other conditions set forth in Section 4.3(f) hereof have
been fully satisfied. Notwithstanding the foregoing provisions of this Section
1.48, the Holdback Amount in connection with a particular Applicable Underlying
Loan may be reduced to a minimum of five percent (5%) of the amounts specified
in Sections 1.48(a) and (b) hereof once the Financed Improvements in question
have been fifty percent (50%) completed in accordance with the applicable Plans
and all Applicable Laws, based upon a certification from the Architect or other
evidence satisfactory to Borrower and Lender.
1.49 Holdback Balance. The balance of any Holdback Amount retained by
Lender and Borrower and not paid to an Applicable Underlying Borrower, a General
Contractor, or a subcontractor, materialman, or other Person in connection with
the construction of any Financed Improvements, all in accordance with the
Applicable Underlying Loan Documents.
1.50 Initial Advance. The first Advance by Lender hereunder.
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1.51 Initial Underlying Loan Advance. As to a particular Applicable Underlying
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Loan, the first Advance by Lender hereunder in connection therewith.
1.52 Interest Rate. The Prime Rate plus 0.50% per annum. The Interest Rate
charged for each calendar month shall be fixed based upon the Prime Rate
published or otherwise determined and in effect as of the first Business Day of
such calendar month. The Interest Rate shall be calculated based on a 360 day
year and charged for the actual number of days elapsed.
1.53 Interval. The right to use and occupy a Unit within an Applicable
Resort and the Common Elements and Common Furnishings appurtenant to such Unit
and/or the Applicable Resort during a reserved or assigned use period, all as
more specifically described in the Applicable Declaration and/or other
Applicable Timeshare Documents. An Interval may be coupled with an estate (such
as a fee simple or leasehold estate) in real property, but is not required to be
coupled with an estate in real property. Without limiting the generality of the
foregoing, an Interval may include "right to use" timeshare interests (which are
not coupled with an estate in real property) such as licenses and points-based
vacation club memberships.
1.54 Land. The real property upon which any of the Financed Improvements
or other portion of an Applicable Resort is situated.
1.55 Lien. Any mortgage, security interest, or other interest in property
securing an obligation owed to, or valid claim by, a Person other than the owner
of such property, whether such interest arises in equity or is based on common
law, statute, or contract.
1.56 Loan. The subject revolving credit facility in a maximum principal
amount not to exceed the Maximum Loan Amount at any time, as described in this
Agreement and evidenced and secured by the Loan Documents.
1.57 Loan Documents. Collectively, the following documents and instruments, as
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each may be amended, renewed, extended, restated, or supplemented from time to time:
(a) This Agreement;
(b) The Note;
(c) The Guaranty;
(d) The Pledges and Assignments of Notes Receivable and Applicable
Mortgages (in the form of Exhibit "G," attached hereto and incorporated herein
by this reference);
(e) Assignments of the Underlying Guarantees;
(f) The Custodial Agreement;
(g) The Verification Agent's Agreement;
(h) The Lockbox Agreement;
(i) UCC-1 and UCC-3 financing statements covering the Collateral, to
be recorded in the appropriate public records of each Applicable Jurisdiction
and filed in the office of the Secretary of State of each Applicable
Jurisdiction in which any of the Collateral is located; and
(j) All such other assignments, agreements, documents, instruments,
certificates, and materials as Lender may require in order to evidence or secure
the Obligations, to evidence and perfect the rights, Liens, and security
interests of Lender contemplated by the Loan Documents, and otherwise to
effectuate the transactions contemplated hereby.
1.58 Loan-to-Value Ratio. As to each Applicable Underlying Loan, the
percentage determined by dividing the outstanding principal balance of the
Pledged Note Receivable evidencing such Applicable Underlying Loan by the then
current fair market value of all Applicable Underlying Loan Collateral that
secures such Pledged Note Receivable as determined by the appraisal referenced
in Section 4.2(k) hereof, the form and substance of which shall be satisfactory
to Lender, as such appraisal may be updated from time to time, at Borrower's
sole cost and expense, upon the reasonable request of Lender in the event that a
Default, pursuant to Section 7.2 hereof, has occurred or if Lender, in good
faith, believes that such a Default is likely to occur.
1.59 Lockbox Agent. Manufacturers and Traders Trust Company, a banking
organization organized under the laws of the State of New York, or such other
Person as Lender engages, in its discretion, at Borrower's sole cost and
expense, to receive, deposit, and disburse all amounts paid by or on behalf of
each Applicable Underlying Borrower and each Applicable Underlying Guarantor in
accordance with the terms, provisions, and conditions hereof, of the Lockbox
Agreement, and of the Applicable Underlying Loan Documents.
1.60 Lockbox Agreement. That certain agreement by and among Lender,
Borrower, and Lockbox Agent in substantially the form of Exhibit "A," attached
hereto and incorporated herein by this reference, pursuant to which Lockbox
Agent is engaged, at Borrower's sole cost and expense, to receive, deposit, and
disburse all amounts paid by or on behalf of each Applicable Underlying Borrower
and each Applicable Underlying Guarantor in accordance with the terms,
provisions, and conditions hereof, of the Lockbox Agreement, and of the
Applicable Underlying Loan Documents.
1.61 Mandatory Prepayment. Any prepayment of the Loan required by Section
2.6(b) hereof.
1.62 Maturity Date. The date that is forty-eight (48) calendar months
following the date of the last Advance.
1.63 Maximum Credit Facilities Amount. Twenty Million Dollars
($20,000,000).
1.64 Maximum Loan Amount. Twenty Million Dollars ($20,000,000).
1.65 Minimum Monthly Interest Payment. The total amount of interest
computed at the Interest Rate that has accrued on the outstanding principal
balance of the Loan during the immediately preceding calendar month.
1.66 Minimum Net Worth Requirement. The minimum net worth requirement
applicable to Guarantor under the terms of the Guaranty.
1.67 Mortgaged Real Property. All of Borrower's right, title, and interest
in and to any Land, Unit, Common Element, Interval, and other real property of
any and every type, together with all easements and other appurtenances thereto,
that is encumbered by the Lien of an Applicable Mortgage and located within an
Applicable Resort.
1.68 Note. That certain Promissory Note that evidences the Loan, dated as
of the Closing Date, made and executed by Borrower to the order of Lender and
delivered to Lender concurrently with Borrower's execution of this Agreement.
1.69 Note Receivable. A promissory note that is now or hereafter made and
executed by an Applicable Underlying Borrower to the order of Borrower,
evidences an Applicable Underlying Loan, and is secured in part by an Applicable
Mortgage.
1.70 Obligations. All present and future indebtedness, liabilities,
obligations, and responsibilities, both financial and otherwise, to which
Borrower is subject under any of the Loan Documents, whether direct or indirect,
absolute or contingent, including but not limited to all amounts due or becoming
due to Lender in respect of the Loan or any of the Loan Documents, including
principal, interest, prepayment premiums, contributions, taxes, insurance
premiums, loan charges, custodial fees, attorneys' and paralegals' fees and
expenses and other fees or expenses incurred by Lender or advanced to or on
behalf of Borrower by Lender, pursuant to any of the Loan Documents or in
connection with Lender's enforcement of the prompt and complete payment and
performance by Borrower and Guarantor of all indebtedness, liabilities,
obligations, and responsibilities owed by Borrower, pursuant to this Agreement,
any of the other Loan Documents, or otherwise.
1.71 Outstanding Applicable Underlying Loan Commitment. At any time, the
excess, if any, of the maximum principal amount which may then be outstanding
under an Applicable Underlying Loan (if fully funded) over the unpaid principal
balance of the Applicable Underlying Loan.
1.72 Outstanding RFI ADC Credit Facility Commitment. The sum of the Outstanding
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Applicable Underlying Loan Commitments for all of the Applicable Underlying Loans.
1.73 Permitted Liens and Encumbrances. Those liens and encumbrances
affecting all or a portion of the Collateral or any Applicable Underlying Loan
Collateral to which Lender consents in writing, as set forth on Exhibit "B,"
attached hereto and incorporated herein by this reference, as amended or
restated from time to time.
1.74 Person. A natural person, corporation, partnership, limited liability
company, joint venture, association, estate, trust, government, governmental
subdivision or agency, other legal entity, or any combination thereof.
1.75 Phase I Environmental Inspection. A Phase I environmental assessment
of an Applicable Resort, including, without limitation, the relevant Land and
all improvements thereto. In the event that any Phase I Environmental Assessment
of an Applicable Resort is unacceptable to Lender for any reason or is not
available, Borrower shall provide Lender with a written report or reports
covering such Applicable Resort, prepared by one (1) or more appropriate
licensed professionals acceptable to Lender, which confirm(s):
(a) The absence of any Hazardous Materials of any kind or nature at
the Applicable Resort, except for commercially reasonable amounts thereof
commonly found at residential and resort properties in the Applicable
Jurisdiction; and
(b) That the applicable engineering firm has obtained, reviewed, and
included within its report a CERCLIS printout from the Environmental Protection
Agency (the "EPA"), statements from the EPA and other applicable state and local
authorities, and such other information as Lender may reasonably require, all of
which information shall confirm that there is no known or suspected hazardous or
toxic waste located at the Applicable Resort or in such proximity thereto as to
create a material risk of contamination of all or any portion of the Collateral
or any Applicable Underlying Loan Collateral.
1.76 Plans. Plans for the development and construction of any Financed
Improvements, together with all specifications and drawings in respect thereof
and all modifications, amendments, additions, and supplements thereto. Said
Plans, which shall be prepared by an Architect, shall indicate the location of
the Financed Improvements, the configuration and dimensions of the Applicable
Resort, the means of access thereto, street lines, easements, the Common
Elements, and other relevant details.
1.77 Pledged Note Receivable. A Note Receivable that has been and remains pledged
------------------------
to Lender by Borrower, pursuant to this Agreement or any of the other Loan Documents.
1.78 Prime Rate. The per annum rate of interest publicly announced, from
time to time, by Citibank, N.A., New York, New York ("Citibank") as the base (or
equivalent) rate of interest charged by Citibank to its largest and most
creditworthy commercial borrowers notwithstanding the fact that some borrowers
of Citibank make borrow from Citibank at rates less than the announced base
rate. If such bank shall, for any period, cease to announce or publish its prime
or reference rate, then Lender shall, during such period, determine the Prime
Rate based upon the prime or base rates announced or published by such other
bank as is reasonably acceptable to Borrower.
1.79 Qualified Borrower. The developer of an interval ownership,
condominium, timeshare, or vacation ownership project, who is domiciled and has
his principal residence [or, in the case of a Person not a natural person, is
organized and has its principal place of business (or if it has no principal
place of business, its chief executive office)] in the United States, and the
creditworthiness for an acquisition, development, and/or construction loan and
other qualifications of which are satisfactory to Lender, based upon any factors
that Lender deems relevant. No Person shall be deemed a Qualified Borrower
unless and until Lender has so designated such Person in writing.
1.80 Qualified Loan. An acquisition, development or construction loan
which is made by Borrower to a Qualified Borrower in connection with a Qualified
Resort, permits the Qualified Borrower to borrow not less than Five Million
Dollars ($5,000,000) (which the Qualified Borrower is reasonably expected to
need), is secured by a Lien on the real property which is the subject of the
loan, and is otherwise satisfactory to Lender, based upon any factors that
Lender deems relevant. No loan shall be deemed a Qualified Loan unless and until
Lender has so designated such loan in writing. By way of clarification, a
Qualified Loan does not need to at any time have an outstanding principal
balance of Five Million Dollars ($5,000,000) or more.
1.81 Qualified Resort. An interval ownership, condominium, timeshare
and/or vacation ownership project which consists of, among other things, certain
Land, Units, Common Elements, and Intervals, whether now existing or hereafter
added, in one (1) or more buildings or phases, and all related Common
Furnishings, easements, licenses, rights, interests, and other appurtenances, as
more fully described in the Applicable Declaration and the other Applicable
Timeshare Documents, located in the United States and is otherwise satisfactory
to Lender, based upon any factors that Lender deems relevant. No project shall
be deemed a Qualified Resort unless and until Lender has so designated such
project in writing.
1.82 Release Fee. Any fee or amount required to be paid by an Applicable
Underlying Borrower to Borrower in consideration for the release of all or a
portion of any Applicable Underlying Loan Collateral from the Lien of an
Applicable Mortgage or any other Lien in favor of Borrower. For purposes of this
Agreement, the term "Release Fee" shall include any other payments, however
denominated, required to be made by an Applicable Underlying Borrower to
Borrower upon the sale of an Interval at an Applicable Resort, pursuant to the
Applicable Underlying Loan Documents.
1.83 RFI ADC Credit Facility Uncovered Cost of the Work. The sum of the
Uncovered Cost of the Work for all Applicable Underlying Loans.
1.84 RFI Credit Facilities. Collectively, the RFI Receivables Credit Facility and
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the Loan.
1.85 RFI Credit Facilities Agreements. Collectively, the RFI ADC Credit Facility
---------------------------------
Agreement and this Agreement.
1.86 RFI Receivables Credit Facility. The revolving credit facility made
available to Borrower, as described in the RFI Receivables Credit Facility
Agreement and evidenced and secured by the loan documents from time to time
executed in connection therewith.
1.87 RFI Receivables Credit Facility Agreement. That Loan and Security
Agreement (Receivables Loans Warehouse Facility) by and among Borrower and
Lender (including the exhibits and schedules hereto), as it may be amended,
restated and/or replaced from time to time.
1.88 Servicing Agent. For so long as (a) no Event of Default has occurred
hereunder and (b) Lender, in its reasonable judgment, has not determined that
such Person's servicing systems and controls are inadequate to protect Lender in
any material way (and based upon an on-site inspection conducted by it prior to
the Closing Date, Lender acknowledges that such an inadequacy did not appear to
exist as of the completion of such inspection), Borrower or an Affiliate of
Borrower; and thereafter, such other Person as Lender engages, in its
discretion, at Borrower's sole cost and expense. Servicing Agent shall service
each Applicable Underlying Loan, which shall include but not be limited to the
collection of Release Fees and all other amounts owed Borrower by the Applicable
Underlying Borrower, pursuant to the Applicable Underlying Loan Documents,
subject to the terms, provisions, and conditions of Section 2 hereof and of the
Servicing Agreement and the Lockbox Agreement.
1.89 Servicing Agreement. An agreement by and among Lender, Borrower, and
Servicing Agent (if different from Borrower) in substantially the form of
Exhibit "C," attached hereto and incorporated herein by this reference, that
provides for the servicing of each Applicable Underlying Loan.
1.90 Survey. An as-built survey of an Applicable Resort prepared in
accordance with the ALTA/ACSM 1992 Minimum Survey Requirements by a licensed
surveyor and certified by the applicable surveyor to the Applicable Underlying
Borrower.
1.91 Timeshare Receivables Credit Facility. The timeshare receivables
credit facility as evidenced in part by that certain Loan and Security Agreement
dated as of even date herewith, by and among Lender, Borrower and Guarantor,
together with any and all related contemporaneous or subsequent transactions
involving Lender and Borrower, among other parties.
1.92 Uncovered Cost of the Work. At any time with respect to any loan, the
excess of (a) the unpaid cost of causing one hundred percent (100%) finished
completion of construction of the improvements being financed in whole or in
part with the proceeds of such loan to occur over (b) the sum of the committed
and undisbursed portion of such loan and any additional equity held pursuant to
Section 6.3(c) hereof or in another manner approved by Lender in writing. For
purposes of the preceding sentence, (x) the improvements financed with the
proceeds of an Applicable Underlying Loan refer to the Financed Improvements for
such loan, and (y) the additional equity required with respect to an Applicable
Underlying Loan must be held by Lender pursuant to Section 6.2(c) hereof.
1.93 Underlying Guaranty. A document or instrument executed by an
Applicable Underlying Guarantor and delivered to Borrower, pursuant to which one
(1) or more Persons guarantees the absolute and unconditional payment and
performance of the Applicable Underlying Loan and all amounts secured by or
under the Applicable Underlying Loan Documents. The term "Underlying Guaranty"
shall further include any document or instrument executed by an Applicable
Underlying Guarantor and delivered to Borrower, pursuant to which the completion
of construction of certain Financed Improvements in accordance with the relevant
Plans and all Applicable Laws is guaranteed.
1.94 Unit. An apartment, condominium unit, or other structure that is
affixed to real property at an Applicable Resort and designed and available,
pursuant to applicable law, for use and occupancy as a vacation residence by one
(1) or more individuals, together with all related Common Elements, Common
Furnishings, easements, and other appurtenances thereto.
1.95 Verification Agent. For so long as Lender, in its reasonable
discretion, determines that Verification Agent's systems and controls are
adequate to protect Lender, Midland Loan Services, L.P.; and thereafter or other
such Person as Lender, in its discretion, engages from time to time, at
Borrower's cost and expense, to exercise certain rights and perform certain
duties and responsibilities of Lender hereunder, including but not limited to
verifying Borrower's compliance with all of the terms, provisions, and
conditions hereof and of the other Loan Documents.
1.96 Verification Agent's Agreement. At any time, that agreement by and
between Lender and Verification Agent, which shall be in form and substance
satisfactory to Lender and pursuant to which Verification Agent is engaged to
perform the duties and responsibilities delegated to it by Lender hereunder and
thereunder.
SECTION 2. THE LOAN
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Lender hereby agrees to make the Loan, including Advances thereunder, in
accordance with all of the terms, provisions, and conditions hereof and of the
other Loan Documents.
2.1 Purposes. The proceeds of the Loan shall be used exclusively to enable
Borrower to make acquisition, development and construction Qualified Loans to
Qualified Borrowers in connection with Qualified Resorts or to reimburse
Borrower for Advances previously made for Qualified Loans to Qualified Borrowers
in connection with Qualified Resorts.
2.2 Qualified Loans. Lender shall have the right to determine whether a
particular loan constitutes a Qualified Loan; and in connection therewith,
Lender shall have the absolute and unconditional right with respect to each loan
that Borrower proposes be deemed a Qualified Loan hereunder to conduct its own
due diligence prior to approving that loan as a Qualified Loan, the reasonable
costs of which shall be borne by Borrower. As part of such due diligence, Lender
may, in its discretion, make or cause to be made, at Borrower's sole cost and
expense, Lender's own physical inspection of the Applicable Resort and all
contemplated Applicable Underlying Loan Collateral. No loan shall be deemed a
Qualified Loan hereunder unless and until Lender has so designated it in
writing.
2.3 Advances.
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(a) Borrowing Term. No Advances will be made by Lender hereunder after the
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last day of the Borrowing Term.
(b) Maximum Amount of Loan. Upon the terms and provisions and
subject to the conditions set forth in this Agreement, including but not limited
to Sections 1.37 and 2.3(c) hereof, and provided that no Event of Default then
exists, Lender shall advance to Borrower, and Borrower may borrow, repay, and
reborrow, principal under the Loan in an amount not to exceed at any time the
lesser of the aggregate amount of the Borrowing Base of all Eligible Notes
Receivable or the Maximum Loan Amount; provided, however, that for purposes of
this Section 2.3(b), the Borrowing Base of any Eligible Note Receivable in
connection with which (i) a monthly payment is more than sixty (60) days'
contractually past due or (ii) an Event of Default listed in Section 7.2 hereof
has occurred shall be deemed zero. In the event that the proceeds of the Loan
and any other amounts required to be paid by Borrower hereunder are insufficient
to pay all costs to which it is contemplated hereunder that such proceeds will
be applied, or if the use of the Loan proceeds varies materially (as determined
reasonably and in good faith by Lender) from the uses described herein, then
Lender shall have no obligation to fund (or continue funding) the Loan or any
portion thereof. The proceeds of the Loan will be disbursed by Lender solely for
the purposes set forth in Section 2.1 hereof.
(c) Minimum Advance Amounts; Frequency of Advances. Without the
prior written consent of Lender, Advances shall (i) be in respect of Eligible
Notes Receivable only; (ii) be in amounts of not less than Fifty Thousand
Dollars ($50,000) each; and (iii) occur no more frequently than two (2) times
per month. For purposes of clarification, if Borrower submits a Draw Request
based upon more than one Eligible Note Receivable, the requested Advance shall
for purposes of this Section 2.3(c) be deemed a single Advance.
(d) Maximum Applicable Underlying Loan Advance Percentage. Under no
circumstance shall Lender be obligated to make any Advance hereunder in respect
of a funding request submitted to Borrower by or on behalf of an Applicable
Underlying Borrower that exceeds the Applicable Borrowing Base Percentage of (i)
the cost of labor, materials, and services actually incorporated into the
Financed Improvements at the Applicable Resort in a manner acceptable to Lender;
plus (ii) the purchase price actually paid for any uninstalled materials to be
utilized in the construction of such Financed Improvements and to be stored upon
the Mortgaged Real Property; plus (iii) any Holdback Balance then due to the
applicable General Contractor and/or any subcontractor, materialman, or other
Person, provided that all conditions for the release of any such Holdback
Balance as set forth in Section 1.50 hereof and the Applicable Underlying Loan
Documents have been fully satisfied, less (A) the applicable Holdback Amount
required to be retained from the Applicable Underlying Borrower's draw request,
pursuant to Section 1.50 hereof and the terms of the Applicable Underlying Loan
Documents; and (B) all prior Advances made by Lender for the payment of the
costs of labor, materials, and services actually incorporated into the
Applicable Resort's Financed Improvements, it being the intent of the parties
hereto that Borrower will advance its own funds in the amount of any portion of
an Applicable Underlying Borrower's funding request not advanced by Lender
hereunder.
(e) Maximum Amount Outstanding Under the Loan and Other Credit Facilities.
Under no circumstances (and irrespective of the aggregate amount of the
Borrowing Base) shall the sum of (i) the aggregate outstanding principal balance
as of a particular date of the Loan, the RFI ADC Credit Facility, any and all
other loans the initial advances of which are hereafter made by Lender to
Guarantor or to an Affiliate of Guarantor, plus (ii) the Combined Outstanding
Commitments, plus (iii) the RFI ADC Facility Uncovered Cost of the Work, plus
(iv) the sum of the Uncovered Cost of the Work with respect to any and all other
loans the initial advances of which are hereafter made by Lender to Guarantor or
an Affiliate of Guarantor exceeds the Maximum Credit Facilities Amount.
2.4 Interest Rate. The aggregate principal amount of all Advances that are
outstanding from time to time shall bear interest at a rate equal to the
Interest Rate. The outstanding principal balance of the Loan shall bear interest
in arrears as of Lender's wiring of funds through its actual receipt of
repayment of the Loan (if received by Lender later than 12 noon, E.S.T., then
interest accrual shall be through the next Business Day following such receipt).
Immediately upon the occurrence of an Event of Default, any and all principal
and other amounts owed Lender hereunder or pursuant to the Note or any of the
other Loan Documents may, in Lender's discretion, bear interest at the Default
Rate.
2.5 Payments. Borrower agrees punctually to pay or cause to be paid to
Lender, via wire transfer, all principal and interest due under the Note or
otherwise in respect of the Loan. Borrower shall make the following payments on
the Loan:
(a) Daily and Weekly. Upon the closing of each Applicable Underlying
Loan, Borrower shall direct in writing and cause the Applicable Underlying
Borrower and Applicable Underlying Guarantor, if any, except as provided in the
following sentence, to pay Lockbox Agent all interest, principal, Release Fees,
prepayments (both voluntary and mandatory), and other amounts of any and every
description payable to Borrower by or on behalf of such Applicable Underlying
Borrower or Applicable Underlying Guarantor, if any, pursuant to the applicable
Pledged Note Receivable or any other Applicable Underlying Loan Documents
(hereinafter collectively referred to as the "Aggregate Lockbox Collections").
The Aggregate Lockbox Collections shall be deposited by Lockbox Agent into the
lockbox account established and maintained by Lockbox Agent in accordance with
the provisions of the Lockbox Agreement (the "Lockbox Account"). Following any
advance by Borrower of an Applicable Underlying Loan or any receivables loan
from Borrower to the Applicable Underlying Borrower from which any Release Fees
and/or other amounts due Borrower from the Applicable Underlying Borrower under
the Applicable Underlying Loan Documents have been subtracted, Borrower shall
pay all such subtracted amounts, together with any additional amounts paid to or
otherwise received from time to time by Borrower in connection with an
Applicable Underlying Loan, including but not limited to any amounts received by
Borrower upon its realization upon any Applicable Underlying Loan Collateral,
directly to Lender (rather than to Lockbox Agent) in the form so received,
properly endorsed to Lender. On each Business Day, Lockbox Agent shall deposit
into an account in the name of Lender and into which only proceeds of the
Pledged Notes Receivable are deposited ("Collection Account") the Aggregate
Lockbox Collections then deposited in the Lockbox Account. On the last Business
Day of each week, Lockbox Agent shall remit, via wire transfer, all amounts then
deposited in the Collection Account directly to Lender in accordance with the
terms of the Lockbox Agreement. Notwithstanding the foregoing provisions of this
Section 2.5(a) to the contrary, unless a Default exists, Borrower may direct
Lockbox Agent to remit to Lender only that portion of the Aggregate Lockbox
Collections which represents principal payments on the Pledged Notes Receivable
and to remit the balance to Borrower.
(b) Monthly. Notwithstanding any provision of Section 2.5(a) hereof
or any other term, provision, or condition hereof or of any other Loan Document
to the contrary, on or before the last Business Day of each calendar month,
Borrower shall pay Lender via wire transfer, in arrears, the Minimum Monthly
Interest Payment due with respect to such month, commencing with the month
immediately succeeding the month in which the Closing Date occurs, to the extent
the Minimum Monthly Interest Payment has not been satisfied pursuant to Section
2.5(e) hereof.
(c) Partial Releases. Under no circumstances shall Borrower execute
and deliver any partial releases from the Lien of an Applicable Mortgage unless
and until the Release Fee that corresponds to the Unit or Interval in question,
pursuant to the Applicable Underlying Loan Documents, has been paid to and
received by Lockbox Agent or if a default or event of default has occurred under
such Applicable Underlying Loan Documents. Lender shall not be responsible for
any of the costs incident to the preparation and recording of partial releases.
(d) Final Payment. Notwithstanding any term, provision, or condition
hereof to the contrary, the entire outstanding principal balance of the Loan,
together with any and all accrued but unpaid interest thereon and all other
Obligations, shall immediately be paid via wire transfer by Borrower to Lender
and otherwise be satisfied in full on or before the earlier to occur of (i) the
occurrence of an Event of Default hereunder or (ii) the Maturity Date.
(e) Application of Payments. Notwithstanding anything in the Loan
Documents to the contrary, the amount of all payments or amounts received by
Lender with respect to the Loan shall be applied to the extent applicable under
the Loan Documents: (a) first, to any past due payments of interest on the Loan
and to accrued interest on the Loan through the date of such payment, including
any default interest; (b) then, to any interest on delinquent interest, late
fees, overdue risk assessments, examination fees and expenses, collection fees
and expenses and any other fees and expenses due to Lender under the Loan
Documents in connection with the Loan; and (c) last, the remaining balance, if
any, to the unpaid principal balance of the Loan; provided, however, that unless
a Default exists, principal payments on the Pledged Notes Receivable and, to the
extent not identified by Borrower to Lender as non-principal payments before
receipt by Lender, at Lender's option other payments on the Pledged Notes
Receivable shall be applied to the unpaid principal balance of the Loan; and
provided further while a Default exists, each payment hereunder shall be applied
to amounts owed to Lender by Borrower as Lender in its discretion may determine.
In calculating interest and applying payments as set forth above: (a) interest
on the Loan shall be calculated and collected through the date payment is
actually received by Lender; (b) interest on the outstanding balance of the Loan
shall be charged during any grace period permitted under the Loan Documents; (c)
on each annual anniversary of the Closing Date, all past due interest and other
past due charges provided for under the Loan Documents with respect to the Loan
shall be added to the principal balance of the Loan; and (d) to the extent that
Borrower makes a payment or Lender receives any payment or proceeds of the
Collateral for Borrower's benefit that is subsequently invalidated, set aside or
required to be repaid to any other person or entity, then, to such extent, the
Obligations in connection with the Loan intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Lender and Lender may adjust the balance of the Loan as Lender deems appropriate
under the circumstances. For purposes of this Section 2.5(e), amounts held in
the Lockbox Account and/or the Collection Account shall not be deemed to have
been received by Lender.
2.6 Prepayments.
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(a) Voluntary. Borrower may prepay the Loan, in whole or in part, without
---------
premium or penalty, at any time.
(b) Mandatory. If at any time and for any reason, the outstanding
unpaid principal balance of the Note exceeds the aggregate amount of the
Borrowing Base of all Applicable Underlying Loans and Pledged Notes Receivable,
then, within ten (10) days following Borrower's receipt of telecopied notice
from Lender of the occurrence of such event or, absent such telecopied notice,
within fifteen (15) days after the end of the calendar month in which such
excess first occurred, Borrower shall prepay the outstanding principal balance
of the Note in an amount equal to the difference between the outstanding
principal balance of the Note and the aggregate amount of the Borrowing Base of
all Applicable Underlying Loans and Pledged Notes Receivable.
(c) Prepayment Premium. No prepayment premium or penalty shall be due
-------------------
Lender in connection with any prepayment of the Loan.
2.7 Guaranty. Payment and performance by Borrower of one hundred percent
(100%) of all of the Obligations shall be unconditionally guaranteed, jointly
and severally, by Guarantor.
SECTION 3. COLLATERAL.
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3.1 Grant of Security Interest. To secure the prompt and complete payment
and performance when due of all of the Obligations, for value received, Borrower
hereby unconditionally and irrevocably assigns, pledges, and grants to Lender a
continuing first priority Lien and security interest in and to the Collateral.
3.2 Security Interest in All Pledged Notes Receivable. Notwithstanding
that Lender is obligated, subject to the terms and conditions set forth herein
and in the other Loan Documents, to make Advances only in respect of Eligible
Notes Receivable, Lender shall have a continuing first priority Lien and
security interest in and to all of the Pledged Notes Receivable and may collect
and shall receive all payments made under or in respect of all Pledged Notes
Receivable, including Eligible Notes Receivable that may become ineligible,
until any of the same are released by Lender, if at all, pursuant to Section
11.11 hereof.
3.3 Financing Statements. Borrower agrees, at its own expense, to execute
the UCC-1 and UCC-3 financing statements provided for by the Code, together with
any and all other appropriate instruments and documents, and to take such other
action as may be required to perfect and to continue the perfection of Lender's
first priority Liens and security interests in the Collateral. In addition,
unless prohibited by law, Borrower hereby authorizes Lender to execute and file
any such financing statements on Borrower's behalf.
3.4 Location of Collateral. Except for Encumbered Personal Property that
is replaced in the ordinary course of business, all tangible Collateral (other
than Collateral delivered to Lender or Custodian) shall remain, at all times,
within the Applicable Resort at which it is located on the Closing Date, and
Borrower may not transfer or cause the transfer of any such Collateral from such
premises without the prior written approval of Lender.
3.5 Protection of Collateral; Reimbursement. The portion of the Collateral
consisting of (a) the original Pledged Notes Receivable; (b) the original
Applicable Mortgages; and (c) all other original Loan Documents shall be
delivered, at Borrower's expense, to Lender at its address as set forth in
Section 11.1 hereof and, except as otherwise expressly provided herein to the
contrary, held in Lender's possession, custody, and control until all of the
Obligations have been fully satisfied. Alternatively, Lender may elect for
Custodian to maintain possession, custody, and control of all such documents and
instruments during such period of time. Each original Pledged Note Receivable
delivered to Lender shall be duly endorsed by use of an allonge with the words:
"Pay to the order of FINOVA Capital Corporation, with recourse to the maker of
the promissory note to which this allonge is attached but without recourse to
Resort Funding, Inc., except to the extent provided in that certain Loan and
Security Agreement dated as of September ____, 1999, by and among FINOVA Capital
Corporation, and Resort Funding, Inc." The portion of the Collateral delivered
to Lender or Custodian as described above shall be segregated by Lender or
Custodian, as the case may be, and stored in a secure, fire-resistant filing
cabinet, access to which is limited in a commercially reasonable manner.
Borrower agrees that such storage is and shall be deemed to constitute
reasonable care by Lender with respect to such Collateral. Except to the extent
expressly included in the Custodian's fee as set forth in the Custodial
Agreement, all insurance and other expenses of protecting the Collateral,
including, without limitation, storing, warehousing, insuring, handling,
maintaining, and shipping the Collateral, and any and all excise, property,
intangible, sales, and use taxes imposed by any state, federal, or local
governmental authority on any of the Collateral or in respect of the sale
thereof shall be paid by Borrower. Any and all other amounts for which Borrower
may become liable hereunder and all costs and expenses (including attorneys' and
paralegals' fees, legal expenses, and court costs) that Lender may incur in
enforcing or protecting its Lien on, or rights and interest in, the Collateral
or any of its rights or remedies under this Agreement or any other Loan Document
or in respect to any of the transactions to be had hereunder or thereunder,
until paid by Borrower to Lender with interest at the Default Rate, shall be
included among the Obligations and, as such, shall be secured by all of the
Collateral. Provided that Lender or Custodian retains the original Pledged Notes
Receivable and Applicable Mortgages delivered to it in a secure, fire-resistant
filing cabinet as provided above, Lender shall not be liable or responsible in
any way for the safekeeping of any of the Collateral or for any loss or damage
thereto or for any diminution in the value thereof, or for any act or default of
any warehouseman, carrier, forwarding agency, Lockbox Agent, Verification Agent,
Custodian, or any other Person whomsoever, excluding damages or losses that
occur as a result of Lender's gross negligence or willful misconduct.
3.6 Cross-Collateralization and Default. The Collateral shall secure all
of the Obligations as well as Borrower's obligations pursuant to the RFI
Receivables Credit Facility and the obligations of Guarantor and any and all
Affiliates of Guarantor under any loan(s) made by Lender to such Person(s); and
all Liens, pledges, assignments, mortgages, security interests, and collateral
granted to or for the benefit of Lender pursuant thereto or any other related
documents or instruments shall also secure the Obligations. In addition, the
Loan, the RFI Receivables Credit Facility and any other loan made by Lender to
Guarantor or to any Affiliate of Guarantor shall be cross-defaulted such that
(a) any "Default" and "Event of Default" (as those terms are defined in RFI
Receivables Credit Facility Agreement and/or loan documents executed in
connection with another loan made by Lender to Guarantor or any Affiliate of
Guarantor) and (b) any act or event which, under the terms of the RFI
Receivables Credit Facility and/or loan documents executed in connection with
another loan made by Lender to Guarantor or any Affiliate of Guarantor, either
immediately or with notice and/or the passage of time permits Lender to cease
making advances under such loan and/or to accelerate repayment of such loan
shall constitute a Default or an Event of Default, respectively, hereunder, and
vice versa.
SECTION 4. CONDITIONS PRECEDENT TO CLOSING AND FUNDING PROCEDURES
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The obligation of Lender to enter into this Agreement and to make any
Advances shall be subject to the complete satisfaction of each of the conditions
precedent set forth below and elsewhere in the Loan Documents:
4.1 The Loan. On or prior to the Closing Date, but in no event later than
---------
October 31, 1999:
(a) Execution and Delivery. Borrower and Guarantor shall execute and
cause to be notarized, witnessed, and attested, as appropriate, and delivered to
Lender the Loan Documents, together with such additional documents and
certifications as Lender and its counsel may reasonably require in order to
ensure that all conditions precedent to the closing of the Loan and the making
of Advances hereunder have been satisfied in all respects.
(b) Opinion of Borrower's Counsel. Lender shall have received from
duly licensed counsel for Borrower and Guarantor acceptable to Lender such legal
opinions in form and substance satisfactory to Lender, dated as of the Closing
Date, as may be required by Lender in its reasonable discretion.
(c) Representations, Warranties, Covenants, and Agreements. The
representations and warranties contained in the Loan Documents and in any
certificates delivered to Lender in connection with the closing shall be true
and correct in all material respects, and all covenants and agreements required
to have been complied with and performed by Borrower shall have been fully
complied with and performed to the satisfaction of Lender.
(d) No Prohibitions. Neither Borrower nor Guarantor shall have taken any
----------------
action or permitted any condition to exist that would have been prohibited by any
provision of this Agreement.
(e) Borrower's and Guarantor's Background Documents. Borrower shall have
--------------------------------------------------
delivered to Lender, and Lender shall have approved each of the following:
(i) Borrower's and Guarantor's Organizational Documents.
Copies of Borrower's and Guarantor's organizational documents, including
but not limited to their respective articles of incorporation and bylaws,
together with any amendments thereto, certified to be true and complete by
Borrower's and Guarantor's Secretaries, respectively.
(ii) Good Standing Certificates. Current good standing
certificates issued by the Delaware Secretary of State and the New York
Secretary of State (or other appropriate state officer) for Borrower and
by the Delaware Secretary of State for Guarantor.
(iii) Resolutions. Certified resolutions of Borrower's and
Guarantor's boards of directors authorizing the execution of all Loan
Documents and the performance of all Obligations thereunder.
(f) Financial Statements. Lender shall have received and approved
the financial statements for Borrower and Guarantor for the period ending June
30, 1999 and the other Financial Statements required pursuant hereto to be
delivered to Lender, or otherwise required by Lender, for Borrower and
Guarantor, all in form and substance satisfactory to Lender.
(g) Proceedings Satisfactory. All actions taken in connection with
the execution and delivery of the Loan Documents, and all documents and papers
related thereto, shall be completely satisfactory to Lender and its counsel.
Lender and its counsel shall have received copies of all such documents and
papers as Lender or its counsel may reasonably request in connection therewith,
all in form and substance satisfactory to Lender and its counsel.
(h) Expenses. Borrower shall have paid all fees, expenses, and other
amounts required to be paid prior to or on the Closing Date, pursuant to this
Agreement.
4.2 Applicable Underlying Loans. At least ten (10) Business Days prior to
the date of each Initial Underlying Loan Advance, Borrower shall deliver to
Lender and Verification Agent a sworn written certificate, in form and content
satisfactory to Lender, confirming, to the extent applicable, that:
(a) Applicable Underlying Loan Documents. The Applicable Underlying
Borrower and the Applicable Underlying Guarantor have executed and delivered to
Borrower the Applicable Underlying Loan Documents, which Lender has reviewed and
approved in writing.
(b) Title Policies. The Applicable Underlying Borrower has delivered
to Borrower a commitment to issue an ALTA extended coverage lender's policy of
title insurance insuring in favor of Borrower, together with its successors and
assigns, including but not limited to Lender, to the extent of its interest in
the Applicable Underlying Loan, the first priority of the Lien of the Applicable
Mortgage upon the subject Mortgaged Real Property, without exception for filed
or unfiled mechanics' liens or claims or for matters that an accurate survey
would disclose, subject only to such exceptions and conditions to title as
Borrower and Lender shall have approved in writing and such affirmative coverage
as Borrower or Lender deems reasonably necessary (the "Title Policy"). Such
Title Policy shall be in an amount not less than the original principal amount
of the applicable Note Receivable and be issued by a title insurance company
satisfactory to Borrower and Lender in all respects (the "Title Insurance
Company"). Final Title Policies delivered at the time of each advance of the
Applicable Underlying Loan must insure that the Applicable Mortgage creates a
first priority Lien, in favor of Lender, to the extent of its interest in the
Applicable Underlying Loan, and Borrower, together with its successors and
assigns, in and to the subject Mortgaged Real Property, with such exceptions and
conditions to title as Borrower and Lender shall have approved in writing.
Each Title Policy shall contain such affirmative coverage as Lender
deems reasonably necessary, including but not limited to an affirmative
statement that the Title Policy insures Borrower, together with its successors
and assigns, including but not limited to Lender to the extent of its interest
in the Applicable Underlying Loan, against all mechanics' and materialmen's
liens arising from or out of construction of the Financed Improvements and, to
the extent available and commonly required by lenders in the Applicable
Jurisdiction, shall contain endorsements in form and content acceptable to
Lender: (A) insuring against matters that would be disclosed on an accurate
survey of the Land; (B) insuring that no building restriction or similar
exception to title disclosed on the Title Policy has been violated and that any
violation thereof would not create or result in any reversion, reverter, or
forfeiture of title; (C) a zoning endorsement in the form typically issued in
the Applicable Jurisdiction; and (D) insuring over any environmental superlien
or similar lien upon all or any portion of the Applicable Resort. Such Title
Policy shall provide that Borrower and Lender, to the extent of its interest in
the Applicable Underlying Loan, shall receive an endorsement to the Title Policy
on the date of each advance of the Applicable Underlying Loan: (i) indicating
that since the date of the immediately preceding advance, there has been no
change in the state of title and no mechanics' or materialmen's lien, claim, or
lien or similar notice has been filed against any of the Applicable Underlying
Loan Collateral; (ii) updating the Title Policy to the date of such advance; and
(iii) increasing the coverage of the Title Policy by an amount equal to the
amount of such advance if the Title Policy does not by its own terms provide for
such an increase. The condition of title to all Applicable Underlying Loan
Collateral must be satisfactory to Lender in all respects as a condition
precedent to Lender's obligation to make any Advances hereunder in respect of
the Applicable Underlying Loan that is secured by Borrower's Lien in and to such
Applicable Underlying Loan Collateral.
(c) Opinions of Applicable Underlying Borrower's Counsel. Borrower
has received from counsel for the Applicable Underlying Borrower and the
Applicable Underlying Guarantor, licensed in the Applicable Jurisdiction and
acceptable to Borrower and Lender, legal opinions in form and substance
satisfactory to Borrower and Lender, dated as of the date of closing of the
Applicable Underlying Loan, covering such items as may be required by Borrower
and Lender, including, without limitation, that the Applicable Underlying Loan
Documents are valid, binding, and enforceable in accordance with their terms and
that they do not violate any applicable usury or other Applicable Laws. Each
such legal opinion shall also be addressed to Lender and expressly state that it
may be relied upon by Lender for any and all purposes.
(d) Applicable Underlying Loan Background Documents. The Applicable
Underlying Borrower has delivered to Borrower and Borrower has approved each of
the following (to the extent that Borrower has previously delivered any of these
documents with respect to the Applicable Underlying Borrower or the Applicable
Resort in connection with any other loan under the RFI Receivables Credit
Facility Agreement or this Agreement, Lender may waive delivery in connection
with the Applicable Underlying Loan):
(i) Applicable Underlying Borrower's and Applicable Underlying
Guarantor's Organizational Documents. Copies of the Applicable Underlying
Borrower's and the Applicable Underlying Guarantor's organizational
documents, including but not limited to their respective articles of
incorporation, bylaws, partnership agreement, and other documents relevant
to the form of business organization of such Persons, as applicable,
together with any amendments thereto, certified to be true and complete by
the Applicable Underlying Borrower's and the Applicable Underlying
Guarantor's Secretary or other authorized representative.
(ii) Good Standing Certificates. Current good standing
certificates issued by the appropriate Secretaries of State (or other
appropriate state officers) for the Applicable Underlying Borrower and the
Applicable Underlying Guarantor.
(iii) Resolutions. Certified resolutions of the Applicable
Underlying Borrower's and Applicable Underlying Guarantor's boards of
directors or general partners, as applicable, or such other evidence of
authority as is appropriate for the Applicable Underlying Borrower's and
Applicable Underlying Guarantor's form of business organization,
authorizing the execution of all Applicable Underlying Loan Documents and
the performance of all obligations of the Applicable Underlying Borrower
and Applicable Underlying Guarantor thereunder.
(iv) Survey. A survey, dated within ninety (90) days prior to
the Closing Date of the Applicable Underlying Loan, satisfactory to
Borrower and Lender and prepared by a licensed surveyor satisfactory to
Borrower, Lender and the Title Insurance Company in accordance with
Borrower's requirements, of the subject Mortgaged Real Property, showing
the location and dimensions of all Units, Common Elements, and other
improvements thereto and indicating the routes of ingress and egress for
public access to such Mortgaged Real Property, all utility lines, walks,
drives, recorded or visible easements and rights-of-way on such Land, and
showing that there are no encroachments, improvements, projections, or
easements (recorded or unrecorded) on the property lines. Foundation
perimeters are to be added to the survey by the surveyor as soon as they
are in place for all buildings. The survey shall certify the acreage of
subject Mortgaged Real Property and shall indicate whether such Mortgaged
Real Property is located within any flood hazard area. The survey must be
prepared in accordance with the standards set forth by ALTA/ACSM and those
of any and all surveyors' bureaus or associations of the Applicable
Jurisdiction as well as any and all Applicable Laws and must be certified
to Borrower, Lender and the Title Insurance Company. The surveyor's
certificate placed on the survey shall include a statement that said
survey locates any and all such items set forth as exceptions in the Title
Policy as Borrower may require, shall include a legal description of the
Mortgaged Real Property, and otherwise satisfy all of Borrower's and
Lender's survey requirements, and shall include any other information
required by Lender, Borrower or the Title Insurance Company.
(v) Environmental Report. An environmental report or reports
prepared by a Person satisfactory to Lender and covering the Applicable
Resort, including the subject Mortgaged Real Property, confirming (to the
extent relevant, in Lender's reasonable determination):
(A) The absence of Hazardous Materials on, under, or
affecting the Land or any other real property or personal property
comprising the Applicable Resort, except for commercially reasonable
amounts thereof commonly found at residential and resort properties
in the Applicable Jurisdiction;
(B) That the Person preparing the report has obtained,
reviewed, and included within its report a CERCLIS printout from the
Environmental Protection Agency (the "EPA"), statements from the EPA
and other applicable state and local authorities, and such other
information as Borrower or Lender may reasonably require, including,
without limitation, a Phase I Environmental Inspection, all of which
information shall confirm that there are no known or suspected
Hazardous Materials located at, used or stored on, or transported to
or from the Applicable Resort or in such proximity thereto as to
create a material risk of contamination of any of the Applicable
Underlying Loan Collateral, except for commercially reasonable
amounts thereof commonly found at residential and resort properties
in the Applicable Jurisdiction;
(C) The absence of radon gas at the Applicable Resort,
including all of the Units, or, if radon gas is found to be present
in any part of the Applicable Resort or the Units, that such
presence is of a nature or magnitude so as to be fully in compliance
with applicable standards under the Environmental Laws and all other
applicable laws or standards; and
(D) The absence of friable asbestos within the Units,
Common Elements, or elsewhere at the Applicable Resort or, if
asbestos is found to be present in any part of the Applicable
Resort, that such presence is of a nature or magnitude that is able
to be removed by a licensed removal contractor for a guaranteed
maximum sum satisfactory to Borrower and Lender and included in the
Applicable Approved Construction Budget.
(vi) Soil Tests. A report as to soil and compaction condition
and analysis made at the Land by a soil testing firm satisfactory to
Borrower and Lender. The number and location of such borings shall be in
accordance with the recommendations of the soil testing firm and must also
be satisfactory to Lender and also shall include a sinkhole analysis of
the Applicable Resort. The report shall include the recommendations of the
soil testing firm as to the preparation of the soil needed in order to
adequately support the Financed Improvements. During the course of
construction, the Applicable Underlying Borrower shall also provide such
reports as to concrete tests and such additional soil tests as are
required by Borrower or Lender.
(e) Evidence of Insurance. Borrower has received certified copies of
all insurance policies and endorsements thereto or other evidence satisfactory
to Borrower and Lender, in the discretion of each, relating to the Applicable
Resort, including but not limited to the Financed Improvements. In addition,
Borrower has received written evidence that the Applicable Underlying Borrower
has obtained and is maintaining all policies of insurance required by and in
accordance with Section 6.1(c) hereof, including but not limited to copies of
the most current paid insurance premium invoices for such policies.
(f) Applicable Laws. Borrower has received evidence satisfactory to
Borrower and Lender that all existing and contemplated Financed Improvements at
the Applicable Resort are and will be in compliance with all applicable zoning,
building, and other Applicable Laws in connection with the construction,
development, establishment, and operation of the Applicable Resort (at the
applicable Unit density) and the sale, use for timeshare purposes, marketing,
and occupancy of Units and Intervals thereat.
(g) Litigation. Borrower has received evidence satisfactory to
Borrower and Lender that there exists no pending or threatened bankruptcy,
foreclosure, or other material litigation or judgments outstanding against or
with respect to the Applicable Resort, all or any portion of the Applicable
Underlying Loan Collateral, the Applicable Underlying Borrower, or the
Applicable Underlying Guarantor (each a "Material Party"). The term "other
material litigation" as used herein shall not include matters in which (i) a
Material Party is a plaintiff and no counterclaim is pending; or (ii) Borrower
and Lender determine, in their discretion, that such litigation is immaterial
due to settlement, insurance coverage, frivolity, or amount or nature of claim.
Borrower shall have obtained an independent search, at Borrower's or the
Applicable Underlying Borrower's expense, confirming that no such bankruptcy,
foreclosure action, or other material litigation or judgment exists.
(h) Code/Other Searches. Borrower has obtained such searches of the
applicable public records as it deems necessary under all Applicable Laws to
verify that it has a first and prior perfected Lien and security interest
covering all of the Applicable Underlying Loan Collateral.
(i) Taxes and Assessments. Borrower has received copies of the most
current tax bills related to the Applicable Resort, together with evidence
satisfactory to it that all taxes and assessments owed by or for which the
Applicable Underlying Borrower or an owners' association is responsible for
collection have been paid, which taxes and assessments include, without
limitation, sales taxes, room occupancy taxes, payroll taxes, personal property
taxes, excise taxes, intangible taxes, real property taxes, income taxes, and
any assessments related to the Applicable Resort and/or the Units or Intervals
thereat. Borrower shall also have received information satisfactory to Borrower
and Lender disclosing the tax identification numbers, tax rates, estimated tax
values, assessment ratios, and estimated assessment values or amounts with
respect to the Applicable Resort and the Land and the identities of the taxing
authorities having jurisdiction over the Land and the Applicable Resort as well
as the instrumentalities and entities having the power and jurisdiction to
impose assessments against the Land or the Applicable Resort.
(j) Financial Statements. Borrower has received the financial
statements required by the Applicable Underlying Loan Documents to be delivered
to Borrower, or otherwise required by Borrower, for the Applicable Underlying
Borrower and the Applicable Underlying Guarantor, all in form and substance
satisfactory to Borrower and Lender.
(k) Appraisal. Borrower has furnished Lender with an MAI appraisal
of the Applicable Resort, including but not limited to all real and personal
property contemplated to become Mortgaged Real Property or Encumbered Personal
Property hereunder, prepared by a nationally recognized appraisal firm and in
form and content acceptable to Borrower and Lender, in the discretion of each.
(l) Construction Contract. To the extent applicable, a general
construction contract (the "Construction Contract"), in form and content
acceptable to Borrower and Lender, has been executed by and between the
Applicable Underlying Borrower and a general contractor acceptable to Borrower
and Lender (the "General Contractor"), to construct the Financed Improvements in
accordance with the Plans therefor and all Applicable Laws. The Construction
Contract shall contain, in addition to any other provisions relating to
construction of the Financed Improvements that Borrower or Lender may reasonably
require, the following provisions:
(i) An agreement to supply and/or furnish all labor,
supervision, materials, supplies, and equipment necessary to complete the
construction of the Financed Improvements, on or before the date which is
eighteen (18) months following the date of the Initial Underlying Loan
Advance (the "Completion Date"), for not more than a guaranteed maximum
fixed price acceptable to Borrower and Lender;
(ii) A provision that the General Contractor and each
subcontractor and materialman shall, as a precondition to the filing of a
claim of mechanics' lien or the assertion of any related rights, provide
Borrower and Lender with thirty (30) days' prior written notice thereof;
(iii) A provision for such Holdback Amount as Borrower and
Lender consider appropriate under the circumstances, which Holdback Amount
shall be released in the manner set forth in the Applicable Underlying
Loan Documents, the form and content of which are approved by Lender in
writing;
(iv) A provision that prior to final payment under the
Construction Contract, the General Contractor shall deliver to the
Applicable Underlying Borrower, Borrower, and Lender (A) a final and
complete release of Liens signed by the General Contractor and all
subcontractors and materialmen performing work or supplying materials; and
(B) a certificate of substantial completion or its legal equivalent with a
punch list executed by the Applicable Underlying Borrower, the General
Contractor, and the Architect;
(v) A provision that the Construction Contract may not be
terminated by the General Contractor until thirty (30) days after delivery
of a written notice of the Applicable Underlying Borrower's default to
Borrower and Lender (or such longer period after said delivery as may be
reasonably necessary to cure a default thereunder) and may not be
terminated by the General Contractor by reason of the bankruptcy or
insolvency of the Applicable Underlying Borrower;
(vi) A provision that, upon the occurrence of a default or an
event of default under the Construction Contract, the General Contractor
will, at the request of Borrower or Lender, continue to perform thereunder
until construction of the Financed Improvements has been completed; and
(vii) Such other commercially reasonable provisions as
Borrower or Lender shall require.
(m) Applicable Approved Construction Budget. Borrower has received
and approved the Applicable Approved Construction Budget consisting of a
breakdown certified by the Applicable Underlying Borrower and the General
Contractor, in form, scope, and content acceptable to Borrower and Lender,
setting forth all acquisition, construction, and other costs of developing the
Financed Improvements, including, without limitation, financing costs, costs of
acquisition of the Land, costs of construction of the Financed Improvements, and
other hard and soft costs incidental to the construction of the Financed
Improvements and the development of the Applicable Resort and specifying which
items are to be funded from sources other than the proceeds of the Applicable
Underlying Loan. The Applicable Approved Construction Budget shall serve as the
basis upon which advances of the Applicable Underlying Loan are made on account
of each of the categories set forth therein (the costs disclosed on the
Applicable Approved Construction Budget and approved in writing by Lender shall
hereinafter be referred to as the "Approved Costs"). Subject to Section 6.2(c)
hereof, if, in the judgment of Borrower, Lender, or Verification Agent, the
total estimated costs of constructing the Financed Improvements exceed the
maximum principal amount of the Applicable Underlying Loan, then the Applicable
Underlying Loan Documents shall require the Applicable Underlying Borrower to
invest immediately the amount of the difference in accordance with the
requirements of the Applicable Underlying Loan Documents. The Applicable
Underlying Loan Documents shall further require that if any specific amount set
forth in the Applicable Approved Construction Budget is insufficient for its
intended purpose, then the Applicable Underlying Borrower shall immediately cure
such monetary deficiency by paying the amount thereof to Borrower or providing
Borrower with other financial assurances deemed adequate by Borrower, in its
discretion, that such monetary deficiency will be satisfied. The Applicable
Approve Construction Budget shall be accompanied by the Applicable Approved
Construction Schedule, in form and content acceptable to Borrower and Lender,
setting forth the dates on which the Applicable Underlying Borrower expects to
request advances of the Applicable Underlying Loan and specifying the work,
materials, and other costs to be paid with the proceeds of each such advance.
The Applicable Underlying Loan Documents shall require that upon any change in
the Applicable Approved Construction Budget or the Applicable Approved
Construction Schedule, the Applicable Underlying Borrower shall immediately
deliver to Borrower a copy of such revised Applicable Approved Construction
Budget or Applicable Approved Construction Schedule, both of which must be
acceptable to Borrower and Lender, in the discretion of each.
(n) Architect's Contract. Borrower has received and approved a copy
of the contract by and between the Applicable Underlying Borrower and the
Architect, which contract includes the services of an engineer retained by the
Architect in connection with and as part of Architect's work under such
contract, which shall be in form and content acceptable to Borrower and Lender
and which provides that the Architect shall submit to Borrower all certificates,
as-built plans, specifications, and other information as a prerequisite to
Borrower's advances of Applicable Underlying Loan proceeds, including the final
advance thereof. Among other provisions, said Architect's contract shall
prohibit the Applicable Underlying Borrower from agreeing to or permitting any
material amendment, modification, waiver, or other material change to or of any
of the foregoing without the prior written consent of Borrower. Borrower shall
also have received from the Applicable Underlying Borrower a written certificate
from the Architect covering such matters as may be required by Borrower or
Lender and stating that the proposed Financed Improvements, when completed in
accordance with the Plans, will comply with all Applicable Laws, together with
an agreement by the Architect, in form and content acceptable to Borrower and
Lender, that upon the occurrence of an event of default under the Applicable
Underlying Loan Documents, the Architect will, at Borrower's request: (A) assign
to Borrower all of the Architect's right, title, and interest in any engineering
contract in respect of the Financed Improvements; (B) continue performance
pursuant to its agreement with the Applicable Underlying Borrower until the
completion of construction of the Financed Improvements, provided that Borrower
shall compensate the Architect from the date of Borrower's assumption of such
agreement in accordance with said agreement for all such services rendered; and
(C) permit Borrower to use the Plans and any materials obtained by the Architect
from any engineer retained by the Architect at no cost to Borrower. All costs of
the Architect shall be paid by the Applicable Underlying Borrower or Borrower.
(o) Subcontracts. Every contract, in form and content acceptable to
Borrower and Lender, that has been executed by and between the General
Contractor and a construction manager, subcontractor, materialman, or supplier
that is to provide labor and/or materials in connection with the development and
construction of the Financed Improvements in accordance with the Plans with a
value of $5,000 or more (a "Material Subcontractor") contains the agreement of
the Subcontractor to perform its respective contract for Borrower following the
occurrence of an event of default pursuant to the Applicable Underlying Loan
Documents. Furthermore, Borrower has received from the Applicable Underlying
Borrower a list of all Material Subcontractors working on the Financed
Improvements, together with copies of their respective contracts, and showing
the name, address, and telephone number of each Material Subcontractor, the work
or material performed or supplied thereby, and the total amount of each relevant
contract and subcontract and amounts paid through the date upon which such list
was completed.
(p) Plan and Cost Review. Borrower has completed a written plan and
cost review covering such matters as may be required by Lender and confirming
that the proposed Financed Improvements can feasibly be constructed within the
cost limitations set forth in the Applicable Approved Construction Budget and
that the proposed Financed Improvements, when completed in accordance with the
Plans, will comply with all applicable zoning and other Applicable Laws.
(q) Permits and Approvals. Borrower has received copies of building
permit(s) and other satisfactory evidence that the Land and the Financed
Improvements and the intended uses of the Applicable Resort aria in compliance
with all Applicable Laws, including, without limitation: (i) Environmental Laws;
(ii) erosion control ordinances; (iii) doing-business and/or licensing laws;
(iv) laws protecting disabled or handicapped persons; and (v) zoning laws. All
permits and approvals granted to the Applicable Underlying Borrower shall
continue to be legally valid and shall remain in full force and effect for so
long as the Applicable Underlying Loan is outstanding.
(r) Plans. Borrower has received and approved complete and detailed
Plans which shall be satisfactory to Borrower and Lender, in the discretion of
each, and Verification Agent, including any changes or modifications thereto and
including Plans for architectural, structural, mechanical, plumbing, electrical,
and site development (including storm drainage, utility lines, erosion control,
and landscaping) work. All Plans must be stamped with all required approvals
from all applicable governmental authorities, certified under seal by the
Architect, and signed by the Applicable Underlying Borrower and the General
Contractor to be true copies of the Plans architecturally and structurally
approved by all authorities and agencies having jurisdiction thereover. No
change shall be made thereafter in the Plans without the prior written consent
of Borrower and Lender, except as otherwise provided in the Applicable
Underlying Loan Documents as approved by Lender.
(s) Certificate of Architect. Borrower has received a Certificate of
Architect from the Architect who prepared the Plans addressed to Borrower and
stating that (i) any necessary soil testing has been performed, and soil
conditions are satisfactory for the structural support of the Financed
Improvements; (ii) that there is adequate ingress and egress to the Applicable
Resort and the Financed Improvements; (iii) that the Plans have been approved by
all applicable governmental authorities, meet all state construction, energy
conservation, and Environmental Laws, and comply with all federal laws and
regulations adopted pursuant to the Fair Housing Act of 1968 (as amended), the
Americans with Disabilities Act of 1990, and all other Applicable Laws; (iv)
that provisions have been made for the handicapped in accordance with all state
and local ordinances, rules, and regulations; (v) that the zoning is proper;
(vi) that all utilities necessary to service the Financed Improvements and the
Applicable Resort are available with adequate capacity; and (vii) that all
required governmental permits and approvals have been obtained; and such
additional items as may reasonably be required by Borrower or Lender.
(t) Lien Waivers. Borrower has received a certificate or affidavit
of the Applicable Underlying Borrower certifying that within the past ninety
(90) days, no work has been performed on the Applicable Resort for which payment
has not been made in full and for which a Lien could be filed, together with
such indemnity as the Title Insurance Company may require to issue affirmative
mortgagee's title insurance against mechanics' and materialmen's Liens,
including, without limitation, waivers of Lien from each and every contractor,
subcontractor, laborer, or material supplier performing services or supplying
material to the Applicable Resort within the past ninety (90) days and an
affidavit listing all of said entities and certifying that no work has been
performed and no materials have been supplied for which the costs remain unpaid
prior to the date of closing of the Applicable Underlying Loan or the date of
the applicable advance; provided, however, that no such lien waiver need be
delivered by any subcontractor, laborer, or material supplier performing
services or supplying material with a value of less than Five Thousand Dollars
($5,000) until such time as the aggregate value of labor or materials supplied
or services performed by such subcontractors, laborers, or suppliers exceeds
Fifty Thousand Dollars ($50,000).
(u) Interval Sales. To the extent applicable, Borrower has received
written evidence to the effect that the Applicable Underlying Borrower has
complied in all respects with all Applicable Laws relating to the marketing and
sale of Intervals, including but not limited to any Encumbered Intervals, at the
Applicable Resort, including but not limited to timeshare registration statutes,
rules, and regulations.
(v) Management and Property Contract. Borrower has received a copy
of the management contract for the Applicable Resort (the "Management Contract")
and Borrower and Lender have determined to their mutual satisfaction that the
Applicable Resort is being managed by a professional management company
acceptable to Borrower and Lender.
(w Site Inspection. Lender shall have conducted a site inspection
----------------
of the Mortgaged Real Property, the results of which shall be satisfactory to
it.
(x Miscellaneous. Such other matters as Lender shall reasonably
require.
True copies or, to the extent required hereby, originals of all of the
above-referenced documents, instruments, forms, opinions, and other materials
shall be delivered to Verification Agent either prior to or contemporaneously
with Borrower's execution and delivery to Lender of the sworn written
certificate required by this Section 4.2. Verification Agent's written
acknowledgment of receipt and recommendation of approval of each such item is an
absolute condition precedent to Lender's obligation to make any Advances
hereunder in respect of the Applicable Underlying Loan(s) to which Borrower's
Initial Underlying Loan Request and any subsequent Draw Requests pertain;
provided, however, that in the event that Verification Agent fails to provide
Lender with such written acknowledgment of receipt and recommendation of
approval or, alternatively, notification that Verification Agent does not
recommend Lender's approval of each such item, within ten (10) Business Days
following Verification Agent's actual receipt of all applicable documents,
instruments, forms, opinions, and other materials, then, for purposes of this
Section 4.2, Verification Agent shall be deemed to have provided Lender with its
recommendation of approval of each such item in connection with the relevant
Advance.
4.3 Funding Procedures. Subject to Section 2.3 hereof, from time to time
during the Borrowing Term, Borrower may submit to Lender a written request for
an Advance hereunder (hereinafter sometimes called a "Draw Request") in
substantially the form of Exhibit "D," attached hereto and incorporated herein
by this reference. Provided that no Event of Default hereunder then exists, each
Advance approved by Lender and Verification Agent shall be made within ten (10)
Business Days following the last to occur of (a) Lender's receipt of the
applicable Draw Request and all items required to be submitted to Lender
hereunder, including but not limited to those items referenced in this Section
4.3 (to the extent applicable); and (b) Verification Agent's written
notification to Lender that all items submitted to Verification Agent for its
review pursuant hereto and the Verification Agent's Agreement are acceptable;
provided, however, that in the event that Verification Agent fails to provide
Lender with such written notification or, alternatively, notification that
Verification Agent has not determined each such item to be acceptable, within
ten (10) Business Days following Verification Agent's actual receipt of all
applicable documents, instruments, forms, opinions, and other materials required
to be furnished thereto by Borrower hereunder, then, for purposes of this
Section 4.3, Verification Agent shall be deemed to have provided Lender with
written notification that all items submitted to Verification Agent for its
review, pursuant hereto and the Verification Agent's Agreement, are acceptable.
In particular, the obligation of Lender to make any Advance hereunder
shall be subject to the satisfaction of all of the following conditions
precedent:
(a Requests for Advances. Each Draw Request shall:
---------------------
(i Be in writing;
(ii Be accompanied by a sworn written certificate containing
all of the certifications required to be included in the certificate
described in Section 4.2 hereof and dated as of the date of such Draw
Request;
(iii Specify the principal amount of the Advance requested,
and designate the Applicable Underlying Loan(s) to which the proceeds of
such Advance pertain;
(iv Certify the amount of the then current Borrowing Base of
the Applicable Underlying Loan(s) in question;
(v Confirm that all representations and warranties of Borrower
contained in this Agreement are true and correct as of the date of the
Draw Request and, after giving effect to the making of the requested
Advance, will be true and correct as of the date on which the requested
Advance is to be made;
(vi State that no Default exists as of the date of the Draw
Request and, after giving effect to the making of such requested Advance,
no Default would exist as of the date on which the requested Advance is to
be made;
(vii Be delivered to the office of Lender as set forth in
Section 11.1 hereof and to Verification Agent at its address as set forth
in the Verification Agent's Agreement at least ten (10) Business Days
prior to the date of the requested Advance;
(viii Be signed by a duly authorized officer of Borrower;
(ix As to each Applicable Underlying Loan in respect of which
the requested Advance is sought, contain Borrower's sworn written
certificate to the effect that, to the extent applicable:
(A0 It has received the Applicable Underlying Borrower's
advance request on a completed AIA requisition form that describes
the total cost budget in detail by line item categories of the
Applicable Approved Construction Budget, the percentage of work
completed, the total dollar amount required to complete construction
of the Financed Improvements, and such other information as Borrower
or Lender may reasonably require;
(B0 It has verified the appropriateness of all advance
requests theretofore made by the Applicable Underlying Borrower in
connection with the Applicable Underlying Loan, including but not
limited to the items set forth in Section 4.2 hereof, together with
all other information deemed reasonably necessary by Borrower or
Lender relating to the progress of construction of the Financed
Improvements within the Applicable Resort;
(C0 It has verified that the progress of construction is
in accordance with the Plans, the Applicable Approved Construction
Budget, and all Applicable Laws, that the aggregate amount of
advances of the Applicable Underlying Loan does not exceed the cost
of work already completed, that the balance of Applicable Underlying
Loan proceeds remaining to be disbursed by Borrower are sufficient
to complete all Financed Improvements in accordance with the Plans
and all Applicable Laws, and that the Financed Improvements will be
completed on or before the Completion Date;
(D0 With respect to Advances that relate to the
construction of any new building or of exterior structural
improvements, promptly upon the completion of construction of the
foundations of the Financed Improvements, it has received a
foundation survey that shows the locations of such foundations,
accompanied by a certification of the surveyor as to the absence of
encroachments from or onto the Land and compliance of the Financed
Improvements, as then constructed, with all setback requirements and
other relevant restrictions;
(E0 It has obtained an endorsement to the Title Policy
insuring that, or, if no such endorsement is available, then a
certificate of the Architect certifying that, no building location
is in violation of any easement of record, and no building location
is in violation of any setback restriction;
(F0 It has received (or Borrower has delivered or caused
to be delivered to the Title Insurance Company, in escrow) a fully
executed release of Lien from the General Contractor and from each
Material Subcontractor to be paid with the proceeds of such Advance,
pursuant to which the General Contractor and each such Material
Subcontractor relinquishes its right to file a mechanics' Lien
against the Land or the Financed Improvements in exchange for
payment for work completed to date;
(G0 It has received a current endorsement to the Title
Policy that indicates that since the effective date of the Title
Policy (or the effective date of the last such update, if any),
there has been no change in the status of title to the Applicable
Resort as set out in the Title Policy, that the Lien of the
Applicable Mortgage remains a first priority mortgage Lien on the
subject Mortgaged Real Property and Encumbered Intervals (if
applicable) and is free and clear of any mechanics' Liens or any
other encumbrances not permitted by Borrower and Lender, and which
has the effect of increasing the coverage of the Title Policy by an
amount equal to the advance being made, unless the Title Policy
expressly provides automatically and unconditionally for such
increase in coverage upon each such disbursement;
(H0 It has received written documentation that
satisfactorily accounts to Borrower for the expenditure of funds
allocated to the payment of the soft costs set forth in the
Applicable Approved Construction Budget;
(I0 It has no knowledge of any asserted or threatened
defense, offset, counterclaim, discount, or allowance in respect of
any Pledged Note Receivable; and
(J0 It has received such additional items as Lender
shall reasonably require.
(b Review and Approval by Verification Agent. Each and every item
listed in Section 4.3(a) hereof, together with true copies of all documents,
instruments, forms, certificates, opinions, and other materials received by
Borrower from an Applicable Underlying Borrower in connection with a request for
an advance under an Applicable Underlying Loan has been delivered to
Verification Agent by Borrower, and Verification Agent has reviewed same and
provided Lender with its written acknowledgment of receipt, its recommendation
of approval of each such item, and its opinion concerning the complete
satisfaction of any and all requirements and conditions precedent to Advances
hereunder in respect of the Applicable Underlying Loan.
(c Other Conditions. In addition to the other conditions set forth
in this Agreement, the making of each Advance under the Loan shall be subject to
the satisfaction of all of the following conditions as of the date of such
Advance:
(i All of the conditions set forth in this Agreement, and the
other Loan Documents have been fully satisfied by Borrower, including but
not limited to the proper recordation or registration, pursuant to all
Applicable Laws, of the Pledges and Assignments of Notes Receivable and
Applicable Mortgages and other Applicable Underlying Loan Documents and
Applicable Underlying Loan Collateral in the Applicable Jurisdictions and
the filing of all appropriate UCC-1 and UCC-3 financing statements in
accordance with the provisions of the Code, this Agreement, and the other
Loan Documents (or the deposit of all such documents and instruments in
escrow with the Title Insurance Company, if appropriate);
(ii No Default exists immediately prior to the making of such
requested Advance or, after giving effect thereto, immediately after the
making of such requested Advance;
(iii Each document, instrument, contract, and agreement
required to have been executed and delivered in connection with any prior
Advance is consistent with the terms of this Agreement and remains in full
force and effect;
(iv The date on which such requested Advance is to be made is a
Business Day;
(v Lender has determined that the requested Advance, will be
in compliance with Sections 2.3(b) and (d) hereof, that each Pledged Note
Receivable as to which such Advance is sought remains an Eligible Note
Receivable hereunder and is not in excess of the Borrowing Base, and that
the Maximum Weighted Average has not been exceeded;
(vi All representations and warranties contained herein, in
the other Loan Documents, and in any certificates delivered to Lender in
connection with the Loan are true and correct in all material respects;
and
(vii Lender has received evidence satisfactory to Lender, in
its reasonable discretion, that the Applicable Resort, the Applicable
Underlying Loan Collateral, and the Applicable Underlying Borrower are in
compliance with all Applicable Laws.
(d Payments by Lender. Lender may, at any time and without a request
therefor having been submitted by Borrower, advance Loan proceeds for the
purpose of paying interest on the Loan, real estate taxes, insurance premiums,
fees and expenses of Lender's counsel, or to cure an Event of Default. After the
occurrence of a Default, Lender may, as to an Applicable Underlying Loan, make
payments directly to the General Contractor, any subcontractor, or any other
party that has supplied labor, material, or services in connection with or
incidental to the construction of any of the Financed Improvements, or for the
payment of other costs set forth in the Applicable Approved Construction Budget
or the cost of any of Borrower's undertakings pursuant to the Applicable
Underlying Loan Documents. Notwithstanding the foregoing provisions of this
Section 4.3(d) and except as otherwise provided herein to the contrary, Lender
shall furnish Borrower with written notice of Lender's intent to take any of the
foregoing actions and afford Borrower ten (10) days in which to take such
actions itself prior to Lender's doing so.
(e Miscellaneous Conditions. In connection with any Applicable
Underlying Loan, Lender shall not make any disbursement for construction of any
of the Financed Improvements unless (i) such Financed Improvements have
satisfactory access to dedicated and completed streets unencumbered by Liens;
(ii) the Applicable Mortgage constitutes a first priority Lien on the Mortgaged
Real Property, the Encumbered Intervals (if applicable), and such Financed
Improvements; and (iii) except as otherwise specifically provided herein to the
contrary, there exists no Lien of any sort, whether prior or inferior, other
than the Lien of the Applicable Mortgage with respect to the Mortgaged Real
Property, Encumbered Intervals, and such Financed Improvements, except for Liens
with respect to which an appropriate bond or other financial assurance that
totally protects Lender's first priority Lien and right, title, and interest in
and to such Mortgaged Real Property, Encumbered Intervals, and Financed
Improvements has been issued, the inchoate Liens for property taxes not yet due
and the exceptions permitted by Lender in the Title Policy. Lender shall also be
under no obligation to make an Advance in respect of the Applicable Underlying
Loan (i) if Lender reasonably determines that construction of the Financed
Improvements cannot be completed in accordance with the Applicable Approved
Construction Schedule; (ii) if Lender is not reasonably satisfied that the
proceeds of the Applicable Underlying Loan remaining undisbursed will be
sufficient to complete all of the Financed Improvements according to the Plans
and to pay for all labor, material, and costs and all other costs and
disbursements required to complete the Financed Improvements, including interest
and other non-construction costs; (iii) if the Applicable Resort has been
materially damaged by fire or other casualty; or (iv) after the Completion Date.
(f Conditions Precedent to Final Disbursements. The final Advance in
connection with an Applicable Underlying Loan shall be disbursed by Lender only
upon Borrower's fulfillment of all of the following conditions (to the extent
applicable):
(i Evidence of Completion. Receipt by Lender of a certificate
of completion from the Architect or other satisfactory evidence confirming
the completion of the Financed Improvements substantially in accordance
with the Plans and all Applicable Laws and the approval of such completion
by the applicable local governmental authorities. Such certificate or
other evidence shall be duly executed by the General Contractor and the
Applicable Underlying Borrower. In addition, Borrower shall furnish Lender
with copies of all occupancy permits or other permits, the issuance of
which by the appropriate governmental authority is required for the lawful
use, occupancy, and operation of the completed Financed Improvements;
(ii As-Built Survey. As to the final Advance with respect to a
particular Applicable Underlying Loan, receipt by Lender of three (3)
copies of a satisfactory "as-built" survey prepared by a licensed surveyor
satisfactory to Lender and the Title Insurance Company, in accordance with
the Plans and showing all of the Units and other improvements in place,
including, without limitation, striping of parking areas, a statement as
to the number of parking spaces, and such other matters as Lender shall
require. The survey shall be prepared in accordance with the standards set
forth by ALTA/ACSM 1992 Minimum Survey Requirements, shall be certified to
Borrower and the Title Insurance Company, and shall include a narrative
metes and bounds or platted description of the boundaries of the Land, the
area of the Land, and of the Financed Improvements and the location and
dimensions of all easements and Financed Improvements. The surveyor must
include on the survey a signed statement certifying the existence or a
narrative statement certifying the existence or nonexistence of any
encroachment from or onto the Land and must include the date of the survey
and the surveyor's registration number and seal and such other matters as
the Title Insurance Company may require, in form and substance
satisfactory to Borrower, Lender, and the Title Insurance Company;
(iii Final Release of Lien; General Contractor's Affidavit.
Receipt by Lender (or by the Title Insurance Company, in escrow) of final
and complete releases of Lien executed by the General Contractor and all
Material Subcontractors performing work or supplying materials and paid
for by such final Advance, in form and content acceptable to Lender,
together with any and all additional affidavits of all such parties,
sufficient in the opinion of Lender and Lender's counsel to remove or
insure over any and all mechanics' and materialmen's Liens (inchoate or
otherwise) affecting the title to any of the Mortgaged Real Property or
the Financed Improvements, except for Liens with respect to which an
appropriate bond or other financial assurance that totally protects
Lender's first priority Lien and right, title, and interest in and to such
Mortgaged Real Property, Encumbered Intervals, and Financed Improvements
has been issued.
(iv Certificates Regarding Non-Unit Improvements. Certificates
from the Architect, General Contractor, and Applicable Underlying Borrower
that all Financed Improvements required to be constructed as identified on
the Plans or as set forth in the Applicable Timeshare Documents have been
completed substantially in accordance with the Plans and all Applicable
Laws;
(v As-Built Plans. Two (2) sets of detailed as-built Plans
must be submitted to Lender as soon as they are completed but in no event
later than one (1) month following the issuance of the certificate(s) of
occupancy (or the legal equivalent) with respect to the Financed
Improvements by the applicable governmental authority, which Plans must be
approved and identified as such in writing by the Applicable Underlying
Borrower, the Architect, and the General Contractor and must include Plans
for architectural, structural, mechanical, plumbing, electrical, and all
site development (including storm drainage, utility lines, and
landscaping) work;
(vi Other Evidence. Such other evidence as Lender may
----------------
reasonably require in order to establish that the Financed Improvements and
their intended use comply with all applicable zoning and other Applicable
Laws;
(vii Insurance. Insurance coverage has been expanded to include
---------
all forms of insurance reasonably required by Lender in form satisfactory to
Lender; and
(viii Retainage. All conditions precedent to the release of
any Holdback Balance or retainage in connection with the Construction
Contract, pursuant to the Applicable Underlying Loan Documents, have been
fully satisfied.
(ix Review and Recommendation of Approval by Verification
Agent. Each and every item listed in this Section 4.3(f) has been timely
delivered to Verification Agent by Borrower, and Verification Agent has
reviewed same and provided Lender with its written acknowledgment of
receipt, its recommendation of approval of each such item, and its opinion
concerning the complete satisfaction of any and all requirements and
conditions precedent to the final Advance hereunder in respect of the
Applicable Underlying Loan.
4.4 Advances Do Not Constitute a Waiver. No Advance hereunder shall constitute a
-----------------------------------
waiver of any condition to Lender's obligation to make further Advances hereunder.
SECTION 5. GENERAL REPRESENTATIONS AND WARRANTIES
--------------------------------------
Borrower hereby represents and warrants to Lender as follows:
5.1 Organization, Standing, Qualification. Borrower (a) is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and as a foreign corporation under the laws of each
jurisdiction in which the character or location of the properties owned by it or
the business transacted by it requires licensing and qualification; and (b) has
all requisite power, corporate or otherwise, to conduct its business and to
execute, deliver, and perform its obligations under the Loan Documents.
5.2 Authorization, Enforceability, Etc.
(a The execution, delivery and performance by Borrower of the Loan
Documents has been duly authorized by all necessary corporate actions by
Borrower and does not and will not (i) violate any provision of Borrower's
articles of incorporation, bylaws, or any agreement, law, rule, regulation,
order, writ, judgment, injunction, decree, determination, or award presently in
effect to which Borrower is a party or is subject; (ii) result in, or require
the creation or imposition of, any Lien upon or with respect to any asset of
Borrower other than Liens in favor of Lender; or (iii) result in a breach of, or
constitute a default by Borrower under, any indenture, loan, or credit agreement
or any other agreement, document, instrument, or certificate to which Borrower
is a party or by which it or any of its assets are bound or affected, including
but not limited to any loan from or agreement of any type with a third party
lender.
(b No approval, authorization, order, license, permit, franchise, or
consent of, or registration, declaration, qualification, or filing with, any
governmental authority or other Person is required in connection with the
execution, delivery, and performance by Borrower of any of the Loan Documents.
(c The Loan Documents constitute legal, valid, and binding
obligations of Borrower, enforceable against Borrower in accordance with their
respective terms. To the best of Borrower's knowledge after good faith diligent
inquiry, the Applicable Underlying Loan Documents constitute legal, valid, and
binding obligations of the relevant Applicable Underlying Borrowers and
Applicable Underlying Guarantors, enforceable against each of them in accordance
with the respective terms of such Applicable Underlying Loan Documents.
(d Borrower has good and marketable title to all of the Collateral,
free and clear of any Lien, security interest, charge, or encumbrance except for
the Liens or security interests created by this Agreement or any Loan Document
or otherwise created in favor of Lender or the Permitted Liens and Encumbrances.
No financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office, except such as may
have been filed in favor of Lender.
(e The execution and delivery of the Loan Documents, the delivery
and endorsement to Lender of the Pledged Notes Receivable, the filing and
recordation of UCC-1 and UCC-3 financing statements in each Applicable
Jurisdiction, and the recordation or registration in the Applicable Jurisdiction
in accordance with all Applicable Laws of the Pledges and Assignments of Notes
Receivable and Applicable Mortgages and other Loan Documents create in favor of
Lender valid and perfected continuing first priority Liens and security
interests in and to all of the Collateral. The Collateral secures the full
payment and performance of the Obligations.
(f To the best of Borrower's knowledge after good faith diligent
inquiry, none of the Pledged Notes Receivable is forged or has affixed thereto
any unauthorized signatures or has been entered into by any Person without the
required legal capacity, and during the term of this Agreement, none will be
forged, or will have affixed thereto any unauthorized signatures.
(g There have been no material modifications or amendments
whatsoever to the Pledged Notes Receivable or the Applicable Mortgages, other
than those expressly approved by Lender in writing, the originals of which have
been delivered to Custodian.
(h None of the makers of the Pledged Notes Receivable have any
defenses, offsets, claims, or counterclaims, relating to the Pledged Notes
Receivable or any of the other Applicable Underlying Loan Documents, and
Borrower has received no notice that any such defense, offset, claim or
counterclaim is claimed to exist.
(i The Applicable Mortgages constitute and will continue to
constitute valid and enforceable first and exclusive Liens and security
interests on the Mortgaged Real Property and the Encumbered Intervals.
(j The Pledged Notes Receivable and the Applicable Mortgages are and
shall remain in full force and effect as valid and binding obligations of the
respective Applicable Underlying Borrowers in favor of Lender, as holder.
(k The grant of the Liens and security interests described herein by
Borrower in favor of Lender has not adversely affected and will not adversely
affect the validity or enforceability of the obligations of the respective
Applicable Underlying Borrowers under any of the Applicable Underlying Loan
Documents.
(l Lender is not and shall not be required to take, and Borrower has
taken, any and all required steps to protect Lender's Liens and security
interests in the Collateral (other than maintaining or causing Custodian to
maintain possession, custody, and control of the portion of the Collateral
constituting instruments and timely filing continuation statements for UCC
financing statements); and Lender is not and shall not be required to collect or
realize upon the Collateral or any distribution of interest or principal, nor
shall loss of, or damage to, any Collateral release Borrower from any of the
Obligations.
5.3 Financial Statements and Business Condition. The Financial Statements
fairly present the respective financial conditions and results of operations of
Borrower and Guarantor as of the date or dates thereof and for the periods
covered thereby. There are no material liabilities, direct or indirect, fixed or
contingent, of Borrower or Guarantor as of the dates of such Financial
Statements that are not reflected therein or in the notes thereto that have not
otherwise been disclosed to Lender in writing. Except for any such changes
heretofore expressly disclosed in writing to Lender, there have been no material
adverse changes in the respective financial conditions of Borrower or Guarantor
from the financial conditions shown in their respective Financial Statements,
nor have Borrower or Guarantor incurred any material liabilities, direct or
indirect, fixed or contingent, that are not shown in their respective Financial
Statements. Borrower and Guarantor are able to pay all of their respective debts
as they become due, and Borrower and Guarantor, as the case may be, shall
maintain such solvent financial condition, giving effect to the Obligations, as
long as Borrower or Guarantor are obligated to Lender under this Agreement or
any of the other Loan Documents. Neither Borrower's nor Guarantor's Obligations
under the Loan Documents will render Borrower or Guarantor unable to pay their
respective debts as they become due.
5.4 Taxes. Except with respect to taxes and assessments being contested in
accordance with the terms and conditions of Section 6.1(e) hereof, Borrower
represents and warrants that to the best of Borrower's knowledge after good
faith diligent inquiry, each Applicable Underlying Borrower: (a) has paid in
full all ad valorem taxes and other taxes and assessments levied against the
Applicable Underlying Loan Collateral, and Borrower knows of no basis for any
additional taxes or assessments against any Applicable Resort or Applicable
Underlying Loan Collateral; and (b) has filed all tax returns required to have
been filed by it and has paid or will pay, prior to delinquency, all taxes shown
to be due and payable on such returns, including interest and penalties, and all
other taxes that are payable by it. To the best of Borrower's knowledge after
good faith diligent inquiry, no tax audit is pending or threatened with respect
to Borrower, Guarantor, any Applicable Underlying Borrower, or any Applicable
Underlying Guarantor.
5.5 Title to Properties; Prior Liens. To the best of Borrower's knowledge
after good faith diligent inquiry, each Applicable Underlying Borrower has good
and marketable title to all of the Applicable Underlying Loan Collateral for
each Applicable Underlying Loan made to it, including but not limited to all
Mortgaged Real Property, together with all rights, properties, and benefits
appurtenant or related thereto. Other than the Liens granted in favor of Lender,
there are no Liens or encumbrances against all or any portion of the Collateral
or the Applicable Underlying Loan Collateral, except for the Permitted Liens and
Encumbrances.
5.6 Subsidiaries, Affiliates, and Capital Structure. Guarantor is the sole
shareholder of and derives financial benefit from Borrower. None of the
Affiliates of Borrower or Guarantor are parties to any proxies, voting trusts,
shareholder agreements, or similar arrangements, pursuant to which voting
authority, rights, or discretion with respect to Borrower or Guarantor is vested
in any other Person.
5.7 Litigation, Proceedings, Etc. There are no actions, suits,
proceedings, orders, or injunctions pending or, to the best of Borrower's
knowledge after good faith diligent inquiry, threatened against or affecting
Borrower, Guarantor, their respective Affiliates, or any Applicable Resort,
Applicable Underlying Borrower, or Applicable Underlying Guarantor, at law or in
equity, or before or by any governmental authority or other tribunal, that (a)
could have a material adverse effect on Borrower, Guarantor, any Affiliate of
Borrower or Guarantor, any Applicable Resort, any Applicable Underlying
Borrower, or any Applicable Underlying Guarantor; or (b) could have a material
adverse effect on all or any portion of the Collateral or any Applicable
Underlying Loan Collateral. Exhibit "E" attached hereto and incorporated herein
by this reference, describes all currently pending litigation against Borrower
or Guarantor.
5.8 Environmental Matters. To the best of Borrower's knowledge after good
faith diligent inquiry: (a) none of the Applicable Resorts contain any Hazardous
Materials, and no Hazardous Materials are used or stored at or transported to or
from any Applicable Resort, except for commercially reasonable amounts thereof
commonly found at residential and resort properties in the Applicable
Jurisdiction; (b) no Applicable Underlying Borrower has received notice from any
governmental agency or other Person with regard to Hazardous Materials on,
under, or affecting all or any portion of the Applicable Underlying Loan
Collateral; and (c) neither any Applicable Underlying Borrower, any Applicable
Resort, nor any Applicable Underlying Loan Collateral is in violation of any
Environmental Laws.
5.9 Full Disclosure. No information, exhibit, or written report or the
content of any schedule furnished by or on behalf of Borrower or Guarantor to
Lender in connection with the Loan, the Applicable Resorts, the Applicable
Underlying Borrowers, the Applicable Underlying Guarantors, any of the
Applicable Underlying Loan Collateral, or the Collateral, and no representation
or statement made by Borrower or Guarantor in any Loan Document, contains any
material misstatement of fact or omits the statement of a material fact
necessary to make the statement contained herein or therein not misleading. To
the extent that any such information, exhibit, report, or statement furnished or
made to Lender was obtained by Borrower from an Applicable Underlying Borrower
or an Applicable Underlying Guarantor, the representation and warranty made in
this Section 5.9 is so made to the best of Borrower's knowledge after good faith
diligent inquiry. Neither Borrower nor Guarantor knows of any fact or condition
that could adversely affect the construction of the Financed Improvements or the
operation of all Applicable Resorts in accordance with all Applicable Laws, or
impede or preclude Borrower's or Guarantor's performance of its Obligations
pursuant to the Loan Documents.
5.10 Use of Proceeds/Margin Stock. None of the proceeds of the Loan will
be used to purchase or carry any "margin stock" (as defined under Regulation U
of the Board of Governors of the Federal Reserve System, as in effect from time
to time), and no portion of the proceeds of the Loan will be extended to others
for the purpose of purchasing or carrying margin stock. None of the transactions
contemplated in this Agreement (including, without limitation, the use of the
proceeds of the Loan) will violate or result in the violation of Section 7 of
the Securities Exchange Act of 1934, as amended, or any regulations issued
pursuant thereto, including, without limitation, Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 11. The
proceeds of the Loan will be disbursed only for the purposes set forth in
Section 2.1 hereof.
5.11 No Defaults. No Default exists, and there is no breach or violation
in any material respect of any term of any document, contract, agreement,
charter instrument, bylaws, or other instrument to which Borrower or any
Affiliate thereof is a party or by which it may be bound.
5.12 Restrictions of Borrower or Guarantors. Neither Borrower, Guarantor,
nor any Affiliate thereof is a party to any contract or agreement, or subject to
any Lien, charge, or restriction, that materially and adversely affects its
business. Neither Borrower nor Guarantor will be, on or after the Closing Date,
a party to any contract or agreement that restricts its right or ability to
incur indebtedness or prohibits Borrower's or Guarantor's execution and delivery
of, or compliance with the terms of, this Agreement or the other Loan Documents.
Borrower has not agreed or consented to cause or permit in the future (upon the
happening of any contingency or otherwise) any of the Collateral, whether now
owned or hereafter acquired, to be subject to a Lien except in favor of Lender
as provided hereunder.
5.13 Broker's Fees. Lender and Borrower represent to each other that
neither of them has made any commitment or taken any action that could result in
a claim for any broker's, finder's, or other similar fees or commissions with
respect to any of the transactions contemplated by this Agreement. Borrower
agrees to indemnify Lender and save and hold Lender harmless from and against
all claims of any Person for any broker's or finder's fee, commission, or
similar amount, and this indemnity shall include reasonable attorneys' fees and
legal expenses.
5.14 Tax Identification/Social Security Numbers. Borrower's and Guarantor's
----------------------------------------------
respective federal taxpayer identification numbers are as follows:
Borrower: .00-0000000
Guarantor:..00-0000000
5.15 Legal Compliance. Borrower has, in all material respects, complied
fully with all Applicable Laws in connection with the Applicable Underlying
Loans. To the best of Borrower's knowledge after good faith diligent inquiry,
each Applicable Underlying Borrower has, in all material respects, similarly
complied with all Applicable Laws in connection with each Applicable Resort and
Applicable Underlying Loan Collateral. In particular, Borrower is not aware of
any violation by an Applicable Underlying Borrower in connection with an
Applicable Resort of: (i) the Interstate Land Sales Full Disclosure Act; (ii)
any applicable state condominium and timeshare statutes, rules, and regulations,
including but not limited to those governing the administration and operation of
owners' associations and those requiring registration of any of the Encumbered
Intervals; (iii) Regulation Z of the Federal Reserve Board; (iv) the Equal
Credit Opportunity Act; (v) Regulation B of the Federal Reserve Board; (vi)
Section 5 of the Federal Trade Commission Act; (vii) all applicable state and
federal securities laws; (viii) all applicable usury laws; (ix) all applicable
trade practices, home and telephone solicitation, sweepstakes, lottery, and
other consumer credit and protection laws; (x) all applicable real estate sales
licensing, disclosure, reporting, and escrow laws; (xi) the Americans with
Disabilities Act; (xii) the Real Estate Settlement Procedures Act; and (xiii)
all amendments to and rules and regulations promulgated under the foregoing.
Furthermore, to the best of Borrower's knowledge after good faith diligent
inquiry, all Applicable Resorts and the improvements (including the Financed
Improvements) thereat have been and will continue to be constructed and operated
in compliance with all applicable zoning requirements, building codes,
subdivision ordinances, licensing requirements, all covenants, conditions, and
restrictions of record, and all other Applicable Laws; and all representations
and warranties made by the Applicable Underlying Borrower in the Applicable
Underlying Loan Documents do not contain any material misstatements of fact or
omit the statement of a material fact necessary to make such representation or
warranty not misleading. Borrower is not aware of any reasons (other than the
completion of all requisite applications therefor in the ordinary course of
business) why all Applicable Underlying Borrowers cannot obtain all necessary
permits, licenses, certificates, franchises, consents, exemptions, orders, and
approvals to develop and operate the Applicable Resorts and construct the
Financed Improvements thereat.
5.16 Representations and Warranties of Applicable Underlying Borrowers. To
the best of Borrower's knowledge after good faith diligent inquiry, the
representations and warranties made by the Applicable Underlying Borrower in the
Applicable Underlying Loan Documents do not contain any material misstatements
of fact or omit the statement of a material fact necessary to make such
representation or warranty not misleading.
5.17 Continuation and Investigation. Each request by Borrower for an
Advance shall constitute an affirmation that all representations and warranties
contained herein remain true and correct as of the date thereof. All
representations, warranties, covenants, and agreements made herein or in any
certificate or other document delivered to Lender by or on behalf of Borrower,
pursuant to or in connection with this Agreement, shall be deemed to have been
relied upon by Lender, notwithstanding any investigation heretofore or hereafter
conducted by or on behalf of Lender, and shall survive the making of any or all
Advances and payments contemplated hereby.
SECTION 6. COVENANTS
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6.1 Affirmative Covenants. For so long as any of Borrower's Obligations remain
----------------------
unsatisfied, Borrower hereby covenants and agrees with Lender as follows:
(a Payment and Performance of Obligations. Borrower shall repay all
of the Loan and all related amounts when and as the same become due and payable,
and Borrower shall strictly observe and perform all of the Obligations,
including, without limitation, all covenants, agreements, terms, conditions, and
limitations contained in the Loan Documents, and will do all things necessary
that are not prohibited by law to prevent the occurrence of any Default.
(b Maintenance of Existence, Qualification and Assets. Borrower
shall at all times (i) maintain its legal existence; (ii) maintain its
qualification, where required, to transact business and good standing in the
States of Delaware and New York and in any other jurisdiction in which it
conducts business; and (iii) comply or cause its compliance with all Applicable
Laws.
(c Maintenance of Insurance. Borrower shall ensure that the
Applicable Underlying Loan Documents require that until all of Borrower's
Obligations have been fully satisfied, policies of insurance with premiums
therefor being paid when due, are maintained and, promptly upon receipt thereof
from each Applicable Underlying Borrower, shall deliver to Lender and
Verification Agent originals of insurance policies issued by insurance companies
(together with paid premium invoices in respect thereof), in amounts, in form,
and in substance, and with expiration dates, all acceptable to Lender and
containing waivers of subrogation rights by the insuring company,
non-contributory standard mortgagee benefit clauses or their equivalents, and
mortgagee loss payable endorsements in favor of and satisfactory to Lender and
breach of warranty coverage, providing the following types of insurance on and
with respect to each Applicable Underlying Borrower and each Applicable Resort:
(i As to all improvements that have already been completed as
of the date hereof, "All Risk Special Form" insurance coverage (including
fire, lightning, hurricane, tornado, wind and water damage, earthquake,
vandalism and malicious mischief coverage) covering all real and personal
property that comprises the Applicable Resort, in an amount not less than
the full replacement value of such improvements and personal property, and
said policy of insurance shall provide for a deductible acceptable to
Lender, breach of warranty coverage, and replacement cost endorsements
satisfactory to Lender, and shall not permit co-insurance. As to the
Financed Improvements, builder's risk insurance with extended coverage
(with standard mortgagee clause in favor of Lender), in an amount and with
a company reasonably satisfactory to Lender, and containing a provision
allowing the insured to complete the work provided for hereunder and
covering the building materials on the Financed Improvements during
construction. Upon completion of all construction activities, such
insurance shall convert to, or shall be replaced with, the above-described
fire and extended coverage insurance covering the improvements, all other
property of any nature used for the construction of the Financed
Improvements and any personal property located in or on the Applicable
Resort, in an amount not less than the full replacement value of such
Financed Improvements and personal property, and said policy of insurance
shall provide for a deductible acceptable to Lender, breach of warranty
coverage, and replacement cost endorsements satisfactory to Lender, shall
not permit co-insurance. All insurance shall specifically cover architect
and engineering fees necessary to repair or replace any insured portion of
the Applicable Resort and shall cover debris removal;
(ii Public liability and property damage insurance covering the
Applicable Resort in amounts and on terms satisfactory to Lender;
(iii Such other insurance on the Applicable Resort or any
replacements or substitutions therefor, including, without limitation,
rent loss, business interruption, flood insurance (if the Applicable
Resort is or becomes located in an area that is considered a flood risk by
the U.S. Emergency Management Agency or pursuant to the National Flood
Insurance program), in such amounts and upon such terms as may from time
to time reasonably be required by Lender; and
(iv Borrower shall ensure that the Applicable Underlying Loan
Documents require the General Contractor to obtain and keep in full force
and effect insurance policies covering workmen's compensation, contingent
liability, and public liability, naming Lender as an additional insured
thereunder and protecting Borrower, Lender, the Applicable Underlying
Borrower, and the General Contractor against any liability for loss or
damage to persons (including death) or property in any way occurring
during the process of the construction of the Financed Improvements or in
any way arising therefrom. The workmen's compensation insurance shall
cover the General Contractor's full statutory liability as employer
without limit, and the contingent liability and public liability insurance
shall be for amounts and with a company satisfactory to Lender.
Lender shall expressly be named an insured and loss payee in each
insurance policy described in this Section 6.1(c). To the extent any
"institutional mortgagee," "institutional lender" or "mortgagee" (as defined or
used in an Applicable Declaration) other than Lender has any rights to approve
the form of insurance policies with respect to the Applicable Resort, the
amounts of coverage thereunder, the insurers under such policies, or the
designation of an attorney-in-fact for purposes of dealing with damage to any
part of the Applicable Resort or insurance claims or matters related thereto or
any successor to such attorney-in-fact or any changes with respect to any of the
foregoing, Borrower shall take all steps as may be necessary to ensure that
Lender shall at all times have a co-equal right with such other "institutional
mortgagee," "institutional lender," or other "mortgagee" (including, without
limitation, Borrower or any third-party lender), to approve all such matters and
any proposed changes in respect thereof; and Borrower shall not cause and shall
use its best efforts to prohibit any changes with respect to any insurance
policies, insurers, coverage, attorney-in-fact or insurance trustee, if any,
without Lender's prior written approval.
In the event of any insured loss or claim in respect of all or any
portion of an Applicable Resort, Borrower shall use its good faith commercially
reasonable efforts (within the scope of its role as lender) to cause all
proceeds of such insurance policies to be applied in a manner consistent with
the Applicable Timeshare Documents and all Applicable Laws.
All insurance policies required pursuant to this Agreement (or the
Applicable Timeshare Documents) shall provide that the coverage afforded thereby
shall not expire or be amended, canceled, modified, or terminated without at
least thirty (30) days' (or a shorter period if such shorter period is mandated
by applicable law) prior written notice to Lender and contain a provision
affirming Lender's rights and benefits thereunder, despite any violation of the
applicable policy terms by the Applicable Underlying Borrower or any other
Person. At least thirty (30) days prior to the expiration date of each policy
maintained pursuant to this Section 6.1(c), a certified copy of a renewal or
replacement thereof satisfactory to Lender shall be delivered to Lender, along
with evidence satisfactory to Lender that the premium therefor has been paid in
full. The delivery of any insurance policies hereunder shall constitute an
assignment of all unearned premiums as further security for the Obligations. In
the event that all required premium payments for all such insurance policies are
not paid at least thirty (30) days prior to the expiration date of each policy
maintained pursuant to this Section 6.1(c), Borrower shall immediately upon
receiving notice thereof notify Lender in writing of such failure to timely pay
the required insurance premiums. Borrower shall make a good faith inquiry on a
regular basis to each Applicable Underlying Borrower to determine whether the
required insurance premiums covering the Applicable Underlying Loan Collateral
have been paid. If Borrower determines upon such inquiry or otherwise that the
required insurance premiums have not been paid, Borrower shall immediately
notify Lender of such failure to timely pay the required insurance premium, and
Borrower shall have thirty (30) days from receipt of a written request from
Lender to cause the required insurance premiums to be paid. If the required
insurance premiums are not paid within such thirty (30) day period, Lender may,
in its discretion, without any obligation to do so, choose to pay such required
insurance premiums, in which case Borrower shall pay Lender interest at the
Default Rate for any amounts so advanced. Lender may also, in its discretion, in
the event the required insurance premiums are not paid when due, establish an
insurance escrow account from which Lender may make insurance payments when
insurance premiums shall become due. If the required insurance premiums are not
paid as required and Lender elects not to pay such insurance premiums or
establish an escrow account for payment thereof, such failure shall constitute
an Event of Default hereunder.
In the event of any fire or other casualty to or with respect to all
or any portion of the Applicable Resort, Borrower covenants that it shall use
its good faith commercially reasonable efforts (within the scope of its role as
lender) to cause the prompt restoration, repair, or replacement of the damaged
portion(s) of the Applicable Resort and the repair or replacement of any other
personal property to the same condition as immediately prior to such fire or
other casualty and, with respect to the real and personal property comprising
the Applicable Resort, in accordance with the terms of the Applicable Timeshare
Documents and all Applicable Laws. The insufficiency of any net insurance
proceeds shall in no way relieve Borrower or the Applicable Underlying Borrower
from their respective obligations as set forth herein. In Lender's discretion,
any and all insurance proceeds payable to or received by Lender pursuant to the
Applicable Declaration or the applicable insurance policies may be applied to
the payment of the Obligations, whether or not due and in whatever order Lender
elects, consistent with the terms of the applicable insurance policy and the
Applicable Declaration.
Borrower shall in good faith cooperate with Lender in obtaining for
Lender the benefits of any insurance or other proceeds lawfully or equitably
payable to any Applicable Underlying Borrower, Borrower, or Lender in connection
with the transactions contemplated hereby and in paying any Obligation
(including the payment by Borrower of the expense of an independent appraisal on
behalf of Lender in case of a fire or other casualty affecting the Applicable
Resort).
Borrower shall not waive any material insurance provision in any
Applicable Underlying Loan Document without Lender's prior written consent.
(d Maintenance of Security. Borrower shall execute and deliver (or
cause to be executed and delivered) to Lender all security agreements, financing
statements, assignments, and such other agreements, documents, instruments, and
certificates, and all supplements and amendments thereto, and take all such
other actions, as Lender deems necessary or appropriate in order to maintain as
valid, enforceable, and perfected first priority Liens and security interests,
all Liens and security interests in the Collateral and Applicable Underlying
Loan Collateral granted to Lender to secure the Obligations. Borrower shall not
grant extensions of time for the payment of, or compromise for less than the
full face value or release in whole or in part, any Applicable Underlying
Borrower, Applicable Underlying Guarantor, or other Person liable for the
payment of, or allow any credit whatsoever except for the amount of cash to be
paid upon, any Collateral or any instrument, chattel paper, or document
representing the Collateral.
(e Payment of Taxes and Claims. Borrower agrees to use its best
efforts to cause to be paid, when due, all taxes and assessments of any kind
imposed on or with respect to the Loan or any of the Loan Documents, or the
Collateral, including but not limited to the Mortgaged Real Property. Borrower
shall make good faith inquiry on a regular basis to determine whether all such
taxes and assessments have been paid. Borrower shall immediately notify Lender
in writing of any failure to timely pay all taxes and assessments due. In the
event that Lender determines (through notice from Borrower or otherwise) that
any such taxes or assessments have not been paid when due, Borrower shall have
thirty (30) days from receipt of a written request for payment from Lender to
cause the required taxes and assessments to be paid, except to the extent such
taxes and assessments are being contested in accordance with the terms and
conditions of this Section 6.1(e). If such required taxes and assessments (and
any applicable late charges, etc.) are not paid within such thirty (30) day
period and are not being contested in accordance with the terms and conditions
of this Section 6.1(e), such failure shall constitute an Event of Default and
Lender may, in its discretion, without any obligation to do so, choose to pay
such taxes on behalf of Borrower or the Applicable Underlying Borrower, in which
case Borrower shall pay Lender interest at the Default Rate on any amounts so
advanced. Borrower shall pay, where applicable, or shall use its best efforts to
cause the Applicable Underlying Borrower or Applicable Underlying Guarantor to
pay, all other charges and assessments levied against such Applicable Underlying
Borrower, the Applicable Underlying Loan Collateral, or the Applicable Resort
before any claim (including, without limitation, claims for labor, services,
materials, or supplies) arises for amounts that have become due and payable.
Borrower may contest the payment of taxes and assessments in good faith and by
appropriate proceedings diligently conducted, which suspend the collection
thereof from the Collateral and do not interfere with the payment of monies due
under the Collateral so long as adequate reserves have been set aside for such
taxes and assessments in accordance with GAAP, and the non-payment of such taxes
and assessments, in the opinion of Lender, does not place the Collateral in any
imminent danger of being sold, forfeited or lost.
(f) Inspections. Borrower shall, at any time and from time to time,
upon reasonable notice and at the expense of Borrower, including but not limited
to the travel expenses of Lender's agents, ensure that the Applicable Underlying
Transaction Documents permit, and use its good faith commercially reasonable
efforts to arrange for, Lender or its agents or representatives to inspect any
Applicable Resort, any Applicable Underlying Loan Collateral, or any of
Borrower's or Guarantor's assets, including but not limited to all documents,
bank statements, and other records within Borrower's possession, custody, or
control, and to examine and make copies and abstracts thereof; and to discuss
its affairs, finances and accounts with any of its officers, employees,
Affiliates, contractors or independent certified public accountants (and by this
provision, Borrower authorizes said accountants to discuss with Lender, its
agents or representatives, the affairs, finances, and accounts of Borrower).
Notwithstanding the foregoing provisions of this Section 6.1(f) to the contrary,
Lender will make no more than two (2) such inspections per year in connection
with any particular Applicable Underlying Loan unless an Event of Default
hereunder has occurred. Lender agrees to use reasonable efforts not to interfere
unreasonably with the Applicable Underlying Borrower's business operations in
connection with any such inspections. Without limiting the foregoing, Lender
shall have the right to make such credit investigations as Lender may deem
appropriate in connection with its review of any Applicable Underlying Loan
Documents. Borrower shall make available to Lender all such credit and other
information in Borrower's possession or under its control or to which it may
have access with respect to Applicable Underlying Borrowers and Applicable
Underlying Guarantors as Lender may request. Notwithstanding anything in this
Section 6.1(f) to the contrary, without the prior written consent of Borrower
not to be unreasonably withheld, Lender will not initiate contact with an
Applicable Underlying Borrower or its employees, agents or independent
contractors concerning an Applicable Underlying Loan unless an Event of Default
exists.
(g) Reporting Requirements. For so long as any of the Obligations
remain unsatisfied, Borrower shall furnish (or cause to be furnished, as the
case may be) to Lender and, in the case of Weekly Allocation Reports, to
Verification Agent, in each case certified in writing by Borrower and Guarantor
as true and correct, the following:
(i) Weekly Allocation Reports. By no later than 10:00 a.m.
Syracuse, New York time each Monday, a report detailing all amounts of
every possible description received by or on behalf of Borrower with
respect to each Applicable Underlying Loan as of 5:00 p.m. Syracuse, New
York time on the immediately preceding Friday during the seven (7)
calendar days ending on such Friday, together with how such amounts were
allocated between principal, interest, and other categories.
(ii) Monthly Financial Reports. As soon as available and in
any event within fifteen (15) days after the end of each calendar month:
(i) a report detailing all amounts of every possible description received
by or on behalf of Borrower with respect to each Applicable Underlying
Loan during the preceding calendar month and how such amounts were
allocated between principal, interest, and other categories; (ii) a
current aging report on the Pledged Notes Receivable; (iii) a Borrowing
Base report substantially in the form of Exhibit "F" attached hereto and
incorporated herein by this reference; and (iv) monthly reports from
Lockbox Agent as required pursuant to the Lockbox Agreement;
(iii) Quarterly Financial Reports. As soon as available and in
any event within sixty (60) days following the end of each calendar
quarter, unaudited statements of income and expense and cash flow of
Borrower and Guarantor for the quarterly period in question and balance
sheets of Borrower and Guarantor as of the last day of such calendar
quarter, all in such detail and scope as may be reasonably required by
Lender, prepared in accordance with GAAP and on a basis consistent with
prior accounting periods and certified as true and correct by Borrower's
and Guarantor's respective chief financial officers, as appropriate;
(iv) Annual Audited Financial Reports. As soon as available
and in any event within one hundred twenty (120) days after the end of
each of calendar year or other fiscal year as may be applicable with
respect to Borrower and Guarantor (a "Fiscal Year"), statements of income
and expense and cash flow of Borrower and Guarantor for the annual period
ended as of the end of such Fiscal Year, and balance sheets of Borrower
and Guarantor as of the end of such Fiscal Year, all in such detail and
scope as may be reasonably required by Lender and prepared and audited by
an independent certified public accounting firm acceptable to Lender in
accordance with GAAP and on a basis consistent with prior accounting
periods. Each annual financial statement of Borrower and Guarantor shall
be certified by Borrower and Guarantor to be true, correct, and complete,
and shall otherwise be in form acceptable to Lender;
(v) Officer's Certificate. Each set of annual Financial
Statements or reports delivered to the Lender pursuant to Sections 6.1
(g)(i), (ii), (iii) and (iv) hereof shall be accompanied by a certificate
of the President or the Chief Financial Officer of Borrower or Guarantor,
as appropriate, setting forth that the signers have reviewed the relevant
terms of this Agreement (and all other agreements and exhibits between the
relevant parties), have made, or caused to be made, under their
supervision, a review of the transactions and conditions of Borrower and
Guarantor from the beginning of the period covered by the Financial
Statements or reports being delivered therewith to the date of the
certificate, and that such review has not disclosed the existence during
such period of any condition or event that constitutes a Default or, if
any such condition or event existed or exists or will exist, specifying
the nature and period of existence thereof and what action Borrower or
Guarantor has taken or proposes to take with respect thereto;
(vi) Sales Reports. In connection with each Applicable
Underlying Loan, within ten (10) days after the end of each month and
within ninety (90) days after the end of each Fiscal Year, Borrower shall
deliver to Lender, monthly and annually, as appropriate, a monthly or
annual sales report from the Applicable Underlying Borrower detailing the
sales of all Encumbered Intervals for the period covered thereby, together
with all Encumbered Interval sales made by the Applicable Underlying
Borrower that have been canceled during such period. Such reports shall
also indicate the number of Encumbered Intervals that remain subject to
the Applicable Mortgage and the number of Intervals for which partial
releases from the Applicable Mortgage have been recorded during such
period and during the term of the Loan. Such reports shall be certified by
the Applicable Underlying Borrower to be true, correct, and complete and
otherwise in a form approved by Lender;
(vii) Audit Reports. Promptly upon receipt thereof, one (1)
copy of each other report submitted to Borrower or Guarantor by
independent public accountants or other Persons in connection with any
annual, interim, or special audit made by them of the books of Borrower or
Guarantor;
(viii) Notice of Default. Promptly upon becoming aware of the
existence of any condition or event that constitutes or would with the
passage of time, notice or a determination by Lender constitute a Default,
or a default or event of default pursuant to any of the Applicable
Underlying Loan Documents, a written notice specifying the nature and
period of existence thereof and what action Borrower is taking or proposes
to take with respect thereto;
(ix) Notice of Claimed Default. Promptly upon becoming aware
that the holder of any material obligation or of any evidence of material
indebtedness of Borrower, Guarantor, or any Applicable Underlying Borrower
or Applicable Underlying Guarantor has given notice or taken any other
action with respect to a claimed default or event of default with respect
thereto, a written notice specifying the notice given or action taken by
such holder and the nature of the claimed default or event of default and
what action Borrower or Guarantor is taking or proposes to take with
respect thereto;
(x) Material Adverse Developments. Promptly upon becoming
aware of any pending or threatened claim, action, proceeding, litigation,
development, or any other information, whether of the type referenced in
Section 5.7 hereof or otherwise, that could materially and adversely
affect Borrower, Guarantor, any Applicable Underlying Borrower, any
Applicable Underlying Guarantor, any Applicable Resort, any Applicable
Underlying Loan Collateral, or all or any portion of the Collateral,
including but not limited to the ability of Borrower to perform its
Obligations hereunder, Borrower shall provide Lender with telephonic
notice thereof, immediately followed by telecopied and mailed written
confirmation, specifying the nature of such development or information and
the anticipated effect thereof;
(xi) Applicable Underlying Loan Financials. Borrower shall
deliver to Lender quarterly unaudited financial statements for each
Applicable Underlying Loan within sixty (60) days after each calendar
quarter and annual audited financial statements for each Applicable
Underlying Loan within one hundred twenty (120) days after each calendar
year; and
(xii) Other Information. Borrower shall promptly deliver to
Lender any other available information related to the Loan, the
Collateral, the Applicable Underlying Loan Collateral, Borrower,
Guarantor, the Applicable Resorts, the Applicable Underlying Borrowers, or
the Applicable Underlying Guarantors as Lender may in good faith request.
(xiii) Applicable Underlying Loan Financials. Borrower shall
deliver to Lender quarterly unaudited financial statements for each
Applicable Underlying Loan within sixty (60) days after each calendar
quarter and annual audited financial statements for each Applicable
Underlying Loan within one hundred twenty (120) days after each calendar
year.
(h) Records. Borrower shall keep detailed accurate books and records
of account in accordance with GAAP reflecting all financial transactions of
Borrower with respect to the Applicable Underlying Loans.
(i) Notices of Changed Circumstances. Borrower shall notify Lender
within five (5) Business Days of the occurrence of any event (i) as a result of
which any representation or warranty of Borrower contained in any Loan Document
would be incorrect or materially misleading if made at that time, or (ii) as a
result of which Borrower is not in full compliance with all of its covenants and
agreements contained in this Agreement or any other Loan Document.
(j) Other Documents. Borrower shall maintain to the satisfaction of
Lender, and make available to Lender, accurate and complete files relating to
the Pledged Notes Receivable and all of the other Collateral, and such files
shall contain true copies of each Pledged Note Receivable, as amended from time
to time, copies of all relevant credit memoranda relating to such Pledged Notes
Receivable, and all collection information and correspondence relating thereto.
(k) Further Assurances. Borrower shall execute and deliver, or cause
to be executed and delivered, such other and further agreements, documents,
instruments, certificates, and assurances as, in the judgment of Lender
exercised in good faith, may be necessary or appropriate in order more
effectively to evidence or secure, and to ensure the performance of, the
Obligations. In addition, Borrower shall deliver to Lender from time to time,
upon request by Lender, such documents, instruments, and other materials or
items as Lender may reasonably require to evidence Borrower's compliance with
the covenants set forth in this Section 6.
(l) Expenses and Closing Fees. Whether or not the transactions
contemplated hereunder are consummated, Borrower shall pay all reasonable
expenses of Lender relating to negotiating, preparing, documenting, closing, and
enforcing this Agreement and the other Loan Documents, including but not limited
to:
(i) The cost of preparing, reproducing, and binding this
Agreement, the other Loan Documents, and all exhibits and schedules
thereto;
(ii) The fees and disbursements of Lender's and Borrower's
counsel;
(iii) Lender's out-of-pocket expenses;
(iv) All fees and expenses (including fees and expenses of
Lender's counsel) relating to any amendments, waivers, consents, or
subsequent closings or other transactions pursuant to the provisions
hereof or the release of any of the Collateral;
(v) All costs, outlays, legal fees, and expenses of every kind
and character had or incurred in: (A) the interpretation or enforcement of
any of the provisions of, or the creation, preservation, or exercise of
rights and remedies under, any of the Loan Documents, including the costs
of appeal; (B) the preparation for, negotiations regarding, consultations
concerning, or the defense or prosecution of legal proceedings involving
any claim or claims made or threatened against Lender arising out of this
transaction or the preservation or protection of the Collateral or
Advances made hereunder, expressly including, without limitation, the
defense by Lender of any legal proceedings instituted or threatened by any
Applicable Underlying Borrower, Applicable Underlying Guarantor, or other
Person to seek to recover or set aside any payment or set off theretofore
received or applied by the Lender with respect to the Obligations, and any
and all appeals thereof; and (C) the advancement of any expenses provided
for under any of the Loan Documents. Without limiting the generality of
the foregoing, in the event of the commencement of a bankruptcy proceeding
by or against Borrower or otherwise involving the Collateral, Lender shall
be entitled to recover, and Borrower shall be obligated to pay, Lender's
attorneys' fees and costs incurred in connection with: (a) any
determination of the applicability of the Debtor Relief Laws to the terms
of the Loan Documents or Lender's rights thereunder; (b) any attempt by
Lender to enforce or preserve its rights under the bankruptcy laws or to
prevent Borrower or any other person from seeking to deny Lender its
rights thereunder; (c) any effort by Lender seeking to protect, preserve
or enforce its rights against Collateral, or seeking to engage in such
protection, preservation or enforcement; or (d) any proceeding(s) arising
under the Debtor Relief Laws, or arising in or related to a case under the
Debtor Relief Laws;
(vi) All fees and expenses of Servicing Agent, Custodian,
Lockbox Agent and Verification Agent;
(vii) All costs and expenses incurred by Lender under the
Note, and all late charges payable under the Note; and
(viii) To the extent the same are not paid by an Applicable
Underlying Borrower, all real and personal property taxes and assessments,
documentary stamp and intangible taxes, sales taxes, recording fees, title
insurance premiums and other title charges, document copying, transmittal
and binding costs, appraisal fees, lien and judgment search costs, fees of
architects, engineers, environmental consultants, surveyors and any
special consultants, construction inspection fees, broker's fees, escrow
fees, wire transfer fees, reasonable expenses (including, without
limitation, reasonable fees and expenses of Lender's counsel) incurred in
connection with the release of any Applicable Underlying Loan Collateral,
and all travel and out-of-pocket expenses of Lender to conduct inspections
or audits. Without limiting any of the foregoing, Borrower shall pay the
costs of Code and other searches, Code and other Loan Document recording
and filing fees, and applicable taxes and premiums on each mortgagee
policy of title insurance delivered to Lender pursuant to this Agreement,
to the extent the same are not paid by an Applicable Underlying Borrower.
Notwithstanding anything in this Section 6.1(l) to the contrary, Borrower's
liability to pay closing and recording fees, taxes, due diligence costs, and
documentation fees in connection with the preparation, negotiation and execution
of this Agreement and the RFI Receivables Credit Facility Agreement and the
closing of the first to occur of the initial Advance against the first
Applicable Underlying Loan collaterally assigned to Lender or the initial
advance under the RFI Receivables Credit Facility against a transaction shall
not exceed Fifty Thousand Dollars ($50,000).
(m) Indemnification of Lender. In addition to (and not in lieu of)
any other provisions hereof or of any other Loan Document providing for
indemnification in favor of Lender, Borrower hereby defends, indemnifies, and
holds harmless Lender, its subsidiaries, other Affiliates, officers, directors,
agents, employees, representatives, consultants, contractors, servants, and
attorneys, as well as the respective heirs, personal representatives,
successors, and assigns of any or all of them (hereinafter collectively referred
to as the "Indemnified Lender Parties"), from and against, and agrees promptly
to pay on demand or reimburse each of them with respect to, any and all
liabilities, claims, demands, losses, damages, costs, and expenses (including,
without limitation, reasonable attorneys' and paralegals' fees and costs),
actions or causes of action of any and every kind or nature whatsoever asserted
against or incurred by any of them by reason of or arising out of or in any way,
directly or indirectly, related or attributable to: (i) this Agreement, the
other Loan Documents, the Collateral, the Applicable Underlying Loan Documents,
or the Applicable Underlying Loan Collateral; (ii) the transactions contemplated
under any of the Loan Documents or the Applicable Underlying Loan Documents,
including, without limitation, those in any way relating to or arising out of
the violation of any Applicable Laws; (iii) any breach of any covenant or
agreement or the incorrectness or inaccuracy of any representation or warranty
of Borrower contained in this Agreement or any of the other Loan Documents
(including, without limitation, any certification of Borrower delivered to
Lender); (iv) any and all taxes, including real estate, personal property,
sales, mortgage, excise, intangible, or transfer taxes, and any and all fees or
charges that may at any time arise or become due prior to the payment,
performance, and discharge in full of the Obligations; (v) the failure of
Borrower or an Applicable Underlying Borrower to perform any obligation or
covenant herein required to be performed pursuant to any Environmental Laws;
(vi) the use, generation, storage, release, threatened release, discharge,
disposal, or presence on, under, or about any Applicable Resort of any Hazardous
Materials (except to the extent that liability of the Indemnified Lender Party
with respect to such matter would not exist but for the acts or omissions of
such Indemnified Lender Party as determined in a final, non-appealable
adjudication by a court of competent jurisdiction); (vii) the removal or
remediation of any Hazardous Materials from an Applicable Resort required to be
performed pursuant to any Environmental Laws or as a result of recommendations
of any environmental consultant or as required by Lender; (viii) claims asserted
by any Person (including, without limitation, any governmental or
quasi-governmental agency, commission, department, instrumentality or body,
court, arbitrator, or administrative board in connection with or any in any way
arising out of the presence, use, storage, disposal, generation, transportation,
release, or treatment of any Hazardous Materials on, in, under, or affecting any
Applicable Resort; (ix) the violation or claimed violation of any Environmental
Laws in regard to an Applicable Resort; (x) the preparation of an environmental
audit or report on an Applicable Resort not to exceed one (1) per calendar year
and premised upon the Lender's reasonable belief of the existence of a violation
of Environmental Laws, whether conducted by Lender, Borrower, an Applicable
Underlying Borrower, or another Person; (xi) the exercise by Borrower of any
rights or remedies under the Applicable Underlying Loan Documents or any
Applicable Laws; or (xii) the exercise by Lender of any rights or remedies under
this Agreement or any of the other Loan Documents. Such indemnification shall
not give Borrower or Guarantor any right to participate in the selection of
counsel for Lender or the conduct or settlement of any dispute or proceeding for
which indemnification may be claimed. The provisions of this Section 5.1(m)
shall survive the full payment, performance, and discharge of the Obligations
and the termination of this Agreement, and shall continue thereafter in full
force and effect.
(n) Loan Servicing. The Servicing Agreement shall be in form and
content satisfactory to Lender. Borrower may not terminate the Servicing
Agreement without's Lender's prior written approval. The Servicing Agreement
shall be cancelable by Lender immediately following the occurrence of an Event
of Default or if Borrower or an Affiliate of Borrower is the Servicing Agent and
Lender, in its reasonable judgment, has determined that such Person's servicing
systems and controls are inadequate to protect Lender in any material way (and
based upon an on-site inspection conducted by it prior to the Closing Date,
Lender acknowledges that such an inadequacy did not appear to exist as of the
completion of such inspection). If the Servicing Agent is Borrower or an
Affiliate of Borrower, Lender may in its discretion and at Borrower's expense
review the servicing procedures of such Person twice in any twelve (12) month
period or more often if a Default hereunder exists, and no servicing fees shall
be paid during or with respect to any period of time in which a Default
hereunder exists.
(o) Closing Failure Fee. If on or before October 31, 1999, no
Advance occurs and no advance occurs under the RFI Receivables Credit Facility
or under any other receivables, acquisition, development or construction loan
the initial advance of which is hereafter made by Lender to Guarantor or to an
Affiliate of Guarantor and such event is not the fault of Lender and does not
result from failure of Lender, its attorneys, agents and independent contractors
to act promptly and in good faith, Borrower shall pay to Lender a fee in the
amount of Two Hundred Thousand Dollars ($200,000) plus all legal fees, costs and
due diligence expenses incurred by Lender in connection with the Loan and the
RFI Receivables Credit Facility. This fee shall not be duplicative of the fee
required pursuant to Section 6.1(o) of the RFI Receivables Credit Facility
Agreement, and all amounts paid pursuant to such Section shall reduce the amount
remaining payable hereunder.
(p) Minimum Loan Balance; Non-Utilization Fee. Beginning on (i) the
date ("Average Combined Balance Start Date") which is six (6) months after the
earlier of the initial Advance, the initial advance under the RFI Receivables
Credit Facility, or the initial advance of any other receivables, acquisition,
development or construction loan under which the initial advance is hereafter
made by Lender to Guarantor or to an Affiliate of Guarantor or (ii) April 30,
2000, and continuing until the date on which the Borrowing Term expires
("Average Combined Balance Stop Date"), Borrower shall maintain an average
aggregate daily principal balance on the Loan, the RFI Receivables Credit
Facility and any other receivables, acquisition, development or construction
loans under which the initial advance is hereafter made by Lender to Guarantor
or to an Affiliate of Guarantor ("Average Combined Balance") in an amount not
less than Ten Million Dollars ($10,000,000) ("Minimum Average Combined
Balance"); provided, however, that Borrower's failure to do so shall not
constitute a Default if on the date ten (10) days after the later of (i) the end
of each three (3) month period (or any shorter period ending on the Average
Combined Balance Stop Date) ("Non-Utilization Fee Payment Period") following the
Average Combined Balance Start Date through the Average Combined Balance Stop
Date or (ii) the effective date of notice from Lender advising Borrower of the
amount due for such Non-Utilization Fee Payment Period, Borrower shall pay to
Lender the Non-Utilization Fee then due, as calculated pursuant to the following
sentence. As used in this Section 6.1(p), the term "Non-Utilization Fee" means
an amount equal to the excess (if any) of (i) the product of (A) the difference
(but not less than zero), during the period ("Elapsed Portion of the Average
Combined Balance Measurement Period") beginning on the Average Combined Balance
Start Date and terminating at the end of the Non-Utilization Fee Payment Period
for which the Non-Utilization Fee is being calculated, between the Minimum
Average Combined Balance and the actual average daily aggregate principal
balance on the Loan, the RFI Receivables Credit Facility and any other
receivables, acquisition, development or construction loans under which the
initial advance is hereafter made by Lender to Guarantor or any Affiliate of
Guarantor times (B) one-half percent (0.5%) times (C) a fraction the numerator
of which is the number of days in the Elapsed Portion of the Average Combined
Balance Measurement Period and the denominator which is three hundred sixty-five
(365) over (ii) the Non-Utilization Fees previously due. This fee shall not be
duplicative of the fee required pursuant to Section 6.1(p) of the RFI ADC Credit
Facility Agreement, and all amounts paid pursuant to such Section shall reduce
the amount remaining payable hereunder. For purposes of this Section 6.1(p), the
daily balance of a loan shall be determined by Lender in the same manner as it
determines the daily balance of a loan for purposes of computing accrued
interest on such loan.
6.2 Construction Covenants. Borrower and Guarantor hereby covenant and agree
-----------------------
with Lender as follows:
(a) Construction Contract and Subcontracts. With respect to each
Construction Contract, Borrower shall not: (i) take any action that could result
in a default under the terms of the Construction Contract; (ii) waive any of the
General Contractor's obligations thereunder; (iii) take any action that could
relieve the General Contractor from its obligations to construct the Financed
Improvements according to the Plans; or (iv) consent to any amendment, other
than change orders as may be permitted hereunder and under the Construction
Contract, without Lender's prior written approval. With respect to any
applicable subcontracts, Borrower agrees not to: (1) take any action that could
result in any material default under the terms of the Subcontracts; (2) waive
any subcontractor's material obligations thereunder; (3) take any action that
could relieve any subcontractor of its obligations to construct the Financed
Improvements according to the Plans; or (4) consent to any material amendments,
other than change orders permitted by this Agreement or as Lender may approve in
writing, to any of the subcontracts without Lender's prior written consent.
(b) Application of Applicable Underlying Loan Proceeds. Borrower
shall use its best efforts to ensure that the proceeds of each Applicable
Underlying Loan are used solely for the purposes set forth in the respective
Applicable Underlying Loan Documents and for no other purposes.
(c) Additional Equity. Lender reserves the right to require, at any
time and from time to time, at Borrower's or an Applicable Underlying Borrower's
expense, a construction cost analysis by an expert in the construction cost
field designated by Borrower and approved by Lender (unless an Event of Default
exists hereunder, in which case Lender shall designate such expert and cause
such construction cost analysis to be performed at Borrower's expense). Any such
construction cost analysis shall be delivered to Lender and Verification Agent
promptly upon its completion. If Lender or Borrower reasonably estimates, at any
time and from time to time, that the amount necessary to assure final completion
of construction of any of the Financed Improvements in accordance with the Plans
and all Applicable Laws, including but not limited to interest and other soft or
non-construction budget items during the term of the Loan, exceeds the amount of
the undisbursed proceeds of the Applicable Underlying Loan in question plus the
total amount of all equity investments made or scheduled to be made by the
Applicable Underlying Borrower with respect to such Financed Improvements, then
the party making such determination shall so notify the other parties hereto in
writing, whereupon Lender shall have the option of requiring Borrower to direct
the Applicable Underlying Borrower (i) to immediately deposit with Verification
Agent, to be held by Verification Agent in a non-interest bearing, non-escrow
account, the amount of any such difference, in cash, which amount shall be
disbursed and applied toward the costs set forth in the Applicable Approved
Construction Budget prior to any further Advance by Lender in respect of such
Applicable Underlying Loan; or (ii) to expend the amount of any such difference
for items included in the Applicable Approved Construction Budget, with
satisfactory evidence of such expenditure being provided to Lender prior to any
Advance by Lender in respect of such Applicable Underlying Loan. Lender shall be
assured at all times, to its complete satisfaction, that the undisbursed
proceeds of each Applicable Underlying Loan are sufficient to complete the
Financed Improvements in accordance with the Plans, the Applicable Underlying
Loan Documents, and all Applicable Laws. Lender reserves the right of continual
verification of adequate equity investments made by each Applicable Underlying
Borrower, to the extent required hereby. Each such deposit shall be expended
before any or any other Applicable Underlying Loan disbursements or Advances in
respect thereof shall be made, and it shall be advanced as construction
progresses.
(d) Commencement and Completion of Construction. Borrower shall take
all reasonable steps to ensure that each Applicable Underlying Borrower
diligently pursues the construction of the Financed Improvements to completion
utilizing good workmanship and quality materials. Quality of construction is of
the essence, and each construction draw shall be subject to verification by
Verification Agent of the satisfactory quality and completion of work in place.
In particular, Borrower shall take all reasonable steps to ensure that each
Applicable Underlying Borrower supplies such sums of money and performs such
duties as may be necessary to complete the construction of the Financed
Improvements pursuant to the Plans and in full compliance with all terms and
conditions of the Applicable Underlying Loan Documents and all Applicable Laws,
all of which shall be accomplished prior to the applicable Completion Date, and
without any Lien, claim, or assessment (actual or contingent) asserted against
all or any portion of the Applicable Resort for any material, labor, or other
items furnished in connection therewith, and all in full compliance with all
applicable construction, use, building, zoning, and other Applicable Laws.
Borrower shall provide to Lender evidence of satisfactory compliance with all of
such requirements upon request therefor by Lender and shall provide Lender with
true and correct copies of all certificates of occupancy issued by the
Applicable Jurisdictions and all other governmental entities and individuals
immediately upon the issuance thereof. Completion of construction shall include
but not be limited to grading, landscaping, adequate sewer, water, electrical,
gas, telephone and other utility facilities, completed streets, sidewalks,
drainage and curbs, both on-site and off-site, public and private. The
construction and development of any building comprising the Financed
Improvements described herein shall be completed in accordance with the
Applicable Approved Construction Schedule. "Substantial Completion" shall be
deemed to have occurred when the Applicable Underlying Borrower has obtained a
certificate of completion issued by the Architect and approved by Lender and
Verification Agent stating that the Financed Improvements are substantially
complete, subject only to a "punch list" designating any minor incomplete work
or other performance remaining to be done under the Construction Contract to
accomplish Completion of the Financed Improvements (hereinafter defined) and
stating the amounts necessary to accomplish Completion of the Financed
Improvements. As used herein, "Completion of the Financed Improvements" shall
mean one hundred percent (100%) finished construction of the Financed
Improvements (not Substantial Completion as defined above) in accordance with
the Plans and all Applicable Laws, certified in writing to Lender by Borrower
and the Architect.
(e) Right of Lender to Inspect Property and Review Plans. Lender and
Verification Agent, at any reasonable time and from time to time, shall be
entitled to enter upon each Applicable Resort and to inspect the Financed
Improvements and all materials to be used in the construction thereof, and
Borrower shall cooperate and use its good faith commercially reasonable efforts
to cause each Applicable Underlying Borrower and each General Contractor to
cooperate with Lender and Verification Agent during such inspections (including
making available to Lender and Verification Agent working copies of the Plans,
together with all related supplementary materials); provided, however, that this
provision shall not be deemed to impose upon Lender any obligation to undertake
such inspections, and further provided that if no Event of Default exists
hereunder, such inspections shall be limited to two (2) times per year in
connection with each Applicable Resort. A licensed architect or engineer
satisfactory to Lender (the "Inspecting Engineer") shall be retained by
Borrower, at Borrower's or each Applicable Underlying Borrower's sole cost and
expense, for the purpose of performing inspections as work progresses,
certifying that each Applicable Underlying Loan draw request is not in excess of
the work completed, less retainage, certifying that the committed and
undisbursed Applicable Underlying Loan proceeds are sufficient to complete the
Financed Improvements, and covering such other matters as Lender shall
reasonably require. Any such inspections shall be for Lender's and Borrower's
sole benefit and shall not be relied upon by Borrower or any other Person. In
accordance with the provisions hereof, the services to be performed by
Verification Agent shall include but not be limited to (i) a review of the
Plans, any and all construction contracts, any and all other documents in the
possession or control of an Applicable Underlying Borrower or a General
Contractor relating to the construction of Financed Improvements and all
proposed changes to them; (ii) a review of the Inspecting Engineer's written
report to Borrower as described above; (iii) an analysis of the foregoing to
ensure conformity of the Financed Improvements with the approved Plans and all
Applicable Laws; and (iv) approval of requests for Advances in respect of each
Applicable Underlying Loan.
(f) Notification of Claims by Subcontractors and Materialmen.
Borrower shall advise Lender promptly in writing if Borrower receives any
notice, written or oral, of any claim filed or asserted by any laborer,
subcontractor, or materialman in connection with any labor or materials
furnished in the construction of the Financed Improvements.
6.3 Negative Covenants. For so long as any portion of the Obligations remains
-------------------
unsatisfied, Borrower hereby covenants and agrees with Lender as follows:
(a) Limitation on Other Debt/Further Encumbrances. Without the prior
written consent of Lender, Borrower shall not obtain financing or grant Liens
with respect to all or any portion of the Collateral (whether now existing or
created hereafter) other than those in favor of Lender.
(b) Restrictions on Transfers. Borrower shall not, without obtaining
the prior written consent of Lender, whether voluntarily or involuntarily, by
operation of law or otherwise: (i) transfer, sell, pledge, convey, hypothecate,
factor, or assign all or any portion of the Collateral; (ii) lease or license
any portion of the Collateral, or change the legal or actual possession or use
thereof; or (iii) permit the dilution, transfer, pledge, hypothecation, or
encumbrance of any of the stock of Borrower. Without limiting the generality of
the preceding sentence (and, as the case may be in addition to the restrictions
contained therein), and subject to the terms of this Agreement, the prior
written consent of Lender shall be required for (A) any transfer of the
Collateral or any part thereof to a subsidiary or other Affiliate of Borrower or
otherwise; (B) any corporate merger or consolidation, disposition, or other
reorganization of Borrower or Guarantor, or the reclassification of any of the
capital stock of Borrower or Guarantor; or (C) any change in the ownership of
Borrower; provided, however, that notwithstanding the foregoing provisions of
this Section 6.3(b) to the contrary, Lender shall not unreasonably withhold its
consent to any of the actions specified in (A) through (C) above in the event
that: (X) the applicable successor to Borrower or Guarantor, as the case may be,
is an investment grade company with a minimum net worth of not less than an
amount then approved by Lender and the Minimum Net Worth Requirement,
respectively, as determined in accordance with GAAP; and (Y) in the case of a
transfer pursuant to clause (A), the transferee assumes the obligations of
Borrower under the Loan Documents pursuant to a document satisfactory to Lender
without the release of Borrower or Guarantor and Borrower and Guarantor have
executed a document or documents satisfactory to Lender confirming their
respective obligations under the Loan Documents. In the event that Lender is
willing to consent to a transfer that would otherwise be prohibited by this
Section 6.3(b), Lender may condition its consent on such terms as it desires,
including, without limitation, an increase in the Interest Rate and the
requirement that Borrower pay a transfer fee, together with any expenses
incurred by Lender in connection with the granting of such consent (including,
without limitation, attorneys' fees and expenses). If Borrower violates the
terms of this Section 6.3(b), in addition to any other rights or remedies which
Lender may have hereunder, pursuant to any other Loan Document, or at law or in
equity, Lender may, upon written notice to Borrower, increase, effective
immediately as of the date of such violation, the Interest Rate to the Default
Rate.
(c) Use of Lender's Name. Without the prior written consent of
Lender, Borrower shall not, and shall not permit any Affiliate to, use the name
of Lender or of any affiliate of Lender in any press release, advertising, or
other promotional materials of any kind.
(d) Transactions with Affiliates. Without the prior written consent
of Lender, Borrower shall not enter into any transaction with any Affiliate
thereof in connection with the Collateral, including, without limitation,
relating to the purchase, sale, or exchange any assets or properties or the
rendering of any service.
(e) Name Change. Borrower shall not change its name, its chief
executive office, or the locations at which it does business without providing
Lender at least thirty (30) days' prior written notice thereof and executing, at
Borrower's sole expense, such UCC-3 amendments and all other documents and
instruments as Lender deems reasonably necessary or appropriate in order to
continue the perfection of its Lien in and to all of the Collateral; provided,
however, that under no circumstances shall the name of Borrower ever include the
word "Xxxxxxx" in it.
(f) Collateral. Neither Borrower nor Guarantor shall take any action
(or permit or consent to the taking of any action) that might materially impair
the value of all or any portion of the Collateral or any of the rights of Lender
with respect to the Collateral, nor shall Borrower or Guarantor cause or permit
any material amendment to or modification of the form or terms of any of the
Pledged Notes Receivable, Applicable Mortgages, other Applicable Underlying Loan
Documents, or any Applicable Timeshare Documents, including but not limited to
the Applicable Declarations.
SECTION 7. EVENTS OF DEFAULT
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An "Event of Default" shall exist if any of the following occurs:
7.1 The Loan.
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(a) Payment Default. If Borrower fails to make, as and when due,
whether by acceleration or otherwise, any payment or mandatory prepayment of
principal, interest, or other fees or amounts of any and every kind hereunder or
pursuant to any of the other Loan Documents. Notwithstanding the foregoing
sentence to the contrary, a payment by Borrower hereunder or pursuant to any of
the other Loan Documents shall not be deemed delinquent hereunder as long as the
entire requisite amount is actually received by Lender, without notice or demand
of any kind by Lender, within fifteen (15) days following the date upon which
such payment is due.
(b) Covenant Defaults. If Borrower fails fully and timely to perform
or observe any non-monetary covenant, agreement, or warranty contained in this
Agreement or in any of the other Loan Documents and such failure continues for a
period of thirty (30) days after notice of such failure is furnished by Lender;
provided, however, that if Borrower commences to cure such failure within such
thirty (30) day period but, because of the nature of such failure, cure cannot
be completed within thirty (30) days, notwithstanding Borrower's good faith best
efforts to do so, then, provided that Borrower diligently seeks to complete such
cure, an Event of Default shall not be deemed to have occurred unless such
failure continues for a total of ninety (90) days after notice of such failure
has been given by Lender, provided that such failure does not (i) result in
substantial financial hardship to Lender; or (ii) materially impair the value of
all or any portion of the Collateral, as determined in the reasonable judgment
of Lender.
(c) Warranties or Representations. If any statement or
representation made by or on behalf of Borrower or Guarantor in any of the Loan
Documents, or in any document, instrument, certificate, opinion, or other item
furnished pursuant to the Loan Documents, is false, misleading, or incorrect in
any material respect as of the date made or reaffirmed; provided, however, that
no Event of Default shall exist hereunder if such false, misleading, or
incorrect statement or representation was made by or on behalf of Borrower or
Guarantor in good faith reliance following diligent inquiry upon a document,
instrument, certificate, opinion, or other item furnished to Borrower or
Guarantor by or on behalf of an Applicable Underlying Borrower or an Applicable
Underlying Guarantor.
(d) Enforceability of Liens. If any Lien granted by Borrower to
Lender in connection with the Loan is or becomes invalid or unenforceable or is
not, or ceases to be, a perfected first priority Lien in favor of Lender
encumbering the asset which it is intended to encumber, and Borrower fails to
cause such Lien to become a valid, enforceable, first and prior Lien in a manner
satisfactory to Lender within ten (10) days after Lender delivers written notice
thereof to Borrower.
(e) Involuntary Proceedings. If a case is commenced or a petition is
filed against Borrower or Guarantor under any Debtor Relief Law, a receiver,
conservator, liquidator, or trustee of Borrower or Guarantor or of any material
asset of Borrower or Guarantor is appointed by court order and such order
remains in effect for more than forty-five (45) days, or if any material asset
of Borrower or Guarantor is sequestered by court order and such order remains in
effect for more than forty-five (45) days.
(f) Voluntary Proceedings. If either Borrower or Guarantor
voluntarily seeks, consents to, or acquiesces in the benefit of any provision of
any Debtor Relief Law, whether now or hereafter in effect, consents to the
filing of any petition against it under such law, makes an assignment for the
benefit of its creditors, admits in writing its inability to pay its debts
generally as they become due, or consents to or suffers the appointment of a
receiver, trustee, liquidator, or conservator for it or any part of its assets.
(g) Attachment; Judgment; Tax Liens. The issuance, filing, levy, or
seizure against all or any portion of the Collateral or any assets of Borrower
or Guarantor, of one (1) or more attachments, injunctions, executions, tax
liens, or judgments for the payment of money cumulatively in excess of $50,000,
that is not discharged in full or stayed within thirty (30) days after such
issuance, filing, levy, or seizure.
(h) Going Concern Reference. If either Borrower's or Guarantor's
annual audited financial statements required to be furnished to Lender, pursuant
to Section 6.1(g) hereof, make a "going concern" reference or otherwise question
Borrower's or Guarantor's continuing viability as a going concern.
(i) Failure to Deposit Proceeds. If Borrower fails to deliver any
payments made under the Pledged Notes Receivable directly to Lender or Lockbox
Agent as required by Section 2.5 hereof (other than inadvertent failures that
are corrected immediately upon discovery), or if Borrower takes any other action
which Lender shall deem to be a conversion of all or any portion of the
Collateral or fraudulent with respect to Lender.
(j) Removal of Collateral. If Borrower conceals, removes, transfers,
conveys, assigns, or permits to be concealed, removed, transferred, conveyed, or
assigned, any of the Collateral in violation of the terms of any of the Loan
Documents or with the intent to hinder, delay, or defraud its creditors or any
of them, including, without limitation, Lender.
(k) Other Defaults. If an Event of Default has occurred pursuant to
---------------
Section 3.6 hereof.
(l) Material Adverse Change. If there occurs any material adverse change
-------------------------
in the financial condition of Borrower or Guarantor.
(m) Default of Guarantors. If a default has occurred under the Guaranty.
----------------------
(n) Default by Borrower in Other Agreements. Any default by Borrower
(i) in the payment or performance of other indebtedness for borrowed money or
obligations in excess of $50,000 or (ii) in the payment or performance of any
other material indebtedness or obligations owed to a person other than Lender,
but only if such default is not cured or waived within thirty (30) days after
the occurrence thereof.
(o) Violation of Negative Covenants. If Borrower violates any negative
---------------------------------
covenant set forth in Section 6.3 hereof.
(p) Insolvency. If either Borrower or Guarantor becomes insolvent or
otherwise generally unable to pay its respective debts as and when they become
due or payable.
7.2 Applicable Underlying Loans.
---------------------------
(a) Payment Defaults. If any Applicable Underlying Borrower fails to
make, as and when due, whether by acceleration or otherwise, any payment or
mandatory prepayment of principal, interest, or other fees or amounts of any and
every kind, pursuant to the Applicable Underlying Loan Documents, and such
failure continues for a period of thirty (30) days after notice of such failure
is furnished by Borrower to the Applicable Underlying Borrower, which notice
shall be given by Borrower immediately upon the Applicable Underlying Borrower's
failure to make the required payment.
(b) Loss of Eligibility. A Pledged Note Receivable ceases being an
Eligible Note Receivable for any reason, pursuant to Section 1.37 hereof.
(c) Attachment; Judgment; Tax Liens. The issuance, filing, levy, or
seizure against any Applicable Resort of one or more attachments, injunctions,
executions, tax liens, or judgments for the payment of money cumulatively in
excess of $25,000, that is not discharged in full or stayed within sixty (60)
days after such issuance, filing, levy, or seizure.
(d) Applicable Timeshare Documents. If any Applicable Declaration or
a timeshare regime created thereby at an Applicable Resort is amended, restated,
or terminated (other than amendments which are non-material) without Lender's
prior written consent.
(e) Insolvency. If any Applicable Underlying Borrower or Applicable
Underlying Guarantor becomes insolvent or otherwise generally unable to pay its
respective debts as and when they become due or payable.
(f) Involuntary Proceedings. If a case is commenced or a petition is
filed against any Applicable Underlying Borrower or Applicable Underlying
Guarantor under any Debtor Relief Law, a receiver, conservator, liquidator, or
trustee of such Applicable Underlying Borrower or Applicable Underlying
Guarantor or of any material asset thereof is appointed by court order and such
order remains in effect for more than forty-five (45) days, or if any material
asset of any Applicable Underlying Borrower or any Applicable Underlying
Guarantor is sequestered by court order and such order remains in effect for
more than forty-five (45) days.
(g) Voluntary Proceedings. If an Applicable Underlying Borrower or
an Applicable Underlying Guarantor voluntarily seeks, consents to, or acquiesces
in the benefit of any provision of any Debtor Relief Law, whether now or
hereafter in effect, consents to the filing of any petition against it under
such law, makes an assignment for the benefit of its creditors, admits in
writing its inability to pay its debts generally as they become due, or consents
to or suffers the appointment of a receiver, trustee, liquidator, or conservator
for it or any part of its assets.
(h) Material Adverse Change. If there occurs any material adverse change
-------------------------
in the financial condition of any Applicable Underlying Borrower or Applicable Underlying
Guarantor.
(i) Enforceability. If any material term, provision, or condition of
an Applicable Underlying Loan Document becomes invalid or legally unenforceable
by Borrower and its successors and assigns, including Lender.
(j) Deficiency. If, in Lender's reasonable opinion, the cost of
completing any of the Financed Improvements in accordance with the applicable
Plans and Applicable Laws exceeds the total amount set forth in the Applicable
Approved Construction Budget and the Applicable Underlying Borrower has failed
to make arrangements satisfactory to Lender for the payment of such additional
costs.
(k) Transfer of Property. Except for the sale of Encumbered
Intervals in the ordinary course of an Applicable Underlying Borrower's business
in accordance with the terms of the Applicable Underlying Loan Documents, and
except for transfers due to involuntary condemnation which do not render an
Applicable Resort useless for its intended purpose, if an Applicable Underlying
Borrower, without Borrower's and Lender's prior written consent, sells, conveys,
or further encumbers all or any part of its interest in the Applicable Resort or
in any of the personalty located thereon or used or intended to be used in
connection therewith except for non-material amendments. For purposes of this
paragraph, an assignment, sale, or transfer shall also include the transfer of
any stock of the Applicable Underlying Borrower other than to an existing
shareholder thereof.
(l) Abandonment or Cessation of Construction. If construction of the
Financed Improvements at any Applicable Resort, once started, is abandoned or
shall, for any reason, cease and not be resumed within twenty-five (25) days
thereafter, unless such cessation is due to any force majeure events, provided
that such force majeure events do not delay construction for so long that the
Financed Improvements reasonably cannot be completed within the time allocated
for the completion thereof as set forth in the Applicable Approved Construction
Schedule.
(m) Lien Against Applicable Resort. Except for the Permitted Liens
and Encumbrances or as otherwise specifically provided herein to the contrary,
if Borrower or an Applicable Underlying Borrower grants any mortgage, Lien, or
other encumbrance upon all or any portion of an Applicable Resort or any
Applicable Underlying Loan Collateral other than in favor of Lender in
connection with the Loan, provided that such mortgage, Lien, or other
encumbrance has a material adverse effect upon the value of such Applicable
Underlying Loan Collateral or all or any portion of the Collateral, unless
approved by Lender in writing.
(n) Title. If any violation or breach shall occur in any agreement,
covenant, or restriction affecting title to all or any portion of an Applicable
Resort, any Mortgaged Real Property, or any Encumbered Intervals, including but
not limited to any Permitted Liens and Encumbrances, and such violation or
breach is not cured within any time frame allowed under the Applicable
Underlying Loan Documents.
(o) Maximum Weighted Average. If the Maximum Weighted Average has been
--------------------------
exceeded.
(p) Cross-Default. An "Event of Default" [as defined in Section 7.2
of the RFI Receivables Credit Facility] occurs in connection with a loan made
with respect to the same Applicable Resort.
Notwithstanding the foregoing provisions of this Section 7.2 to the
contrary, an Event of Default hereunder shall not be deemed to exist if within
thirty (30) days following the occurrence of any of the Defaults set forth in
this Section 7.2, Borrower pays Lender the total amount of all Advances made by
Lender in respect of the Applicable Underlying Loan as to which such occurrence
pertained, together with any accrued but unpaid interest thereon and any other
amounts advanced by or otherwise owed to Lender in connection with such
Applicable Underlying Loan. Promptly following its receipt of all such amounts,
and provided that no Default then exists hereunder, Lender shall release its
Lien against all Applicable Underlying Loan Collateral that secures the
Applicable Underlying Loan in question. Furthermore, an Event of Default
pursuant to Section 7.2(o) hereof shall not be deemed to exist if within thirty
(30) days following the date as of which Lender notifies Borrower that the
Maximum Weighted Average has been exceeded, one (1) or more Applicable
Underlying Borrowers pay Lockbox Agent, via wire transfer, a sufficient amount
to be applied against the outstanding principal balance of the Applicable
Underlying Loan(s) such that the Maximum Weighted Average is no longer exceeded.
SECTION 8. REMEDIES
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8.1 Remedies Upon Default. Should an Event of Default occur, Lender may
-----------------------
immediately take any one (1) or more of the actions described in this Section 8, all
without notice to Borrower or Guarantor:
(a) Acceleration. Declare the unpaid balance of the Loan, or any
part thereof, immediately due and payable, whereupon the same shall be due and
payable to Lender.
(b) Termination of Obligation to Advance. Terminate any commitment
or obligation of Lender to make Advances under this Agreement in its entirety,
or any portion of any such commitment, and/or terminate Lender's further
performance under this Agreement and/or any other document or instrument to
which Lender and Borrower or Guarantor (or any other Affiliate of Borrower) are
parties, without further liability or obligation to Borrower or Guarantor, to
the extent Lender shall deem appropriate, all without notice to Borrower or any
Guarantor.
(c) Termination of Obligation to Grant Partial Releases. Cease granting or
----------------------------------------------------
authorizing any Applicable Underlying Borrower partial releases from the Lien of an
Applicable Mortgage.
(d) Judgment. Reduce Lender's claim to judgment, foreclose, or
otherwise enforce each and every assignment of an Applicable Mortgage and/or any
other Lien or security interest in all or any part of the Collateral by any
available judicial or other procedure under law. Lender's right to xxx and
recover a judgment, either before, after, or during the pendency of any
proceeding for the enforcement of the collateral assignment of the Applicable
Mortgage, and the right of Lender to recover such judgment shall not be affected
by any taking, possession, or foreclosure sale hereunder or by the exercise of
any other right, power, or remedy for the enforcement of the collateral
assignment of the Applicable Mortgage or the foreclosure of the Lien thereof.
(e) Sale of Collateral. Exercise all the rights and remedies of a
secured party under the Code (whether or not the Code applies to the affected
Collateral), including (i) require Borrower to, and Borrower hereby agrees that
it will, at its expense and upon request of Lender forthwith, assemble all or
part of the Collateral as directed by Lender and make it available to Lender at
a place to be designated by Lender that is reasonably convenient to both
parties; (ii) enter upon any premises of Borrower and take possession of the
Collateral; and (iii) sell the Collateral or any part thereof in one (1) or more
parcels at public or private sale, at any of Lender's offices or elsewhere, at
such time or times, for cash, on credit, or for future delivery, and at such
price or prices and upon such other terms as Lender may deem commercially
reasonable. Borrower agrees that, to the extent notice of sale shall be required
by law, ten (10) days notice of the time and place of any sale shall constitute
reasonable notification. At any sale of the Collateral, if permitted by law,
Lender may bid (which bid may be, in whole or in part, in the form of
cancellation of indebtedness) for the purchase of the Collateral or any portion
thereof for the account of Lender. Borrower shall remain liable for any
deficiency. Lender shall not be required to proceed against any Collateral but
may proceed against Borrower directly. To the extent permitted by law, Borrower
hereby specifically waives all rights of redemption, stay, or appraisal that it
has or may have under any law now existing or hereafter enacted.
(f) Retention of Collateral. At its discretion, retain such portion
of the Collateral as shall aggregate in value to an amount equal to the total
amount owed by Borrower pursuant to the Loan Documents, in satisfaction of the
Obligations, whenever the circumstances are such that Lender is entitled and
elects to do so under applicable law.
(g) Purchase of Collateral. Buy all or any part of the Collateral at any
-----------------------
public or private sale.
(h) Exercise of Other Rights. Lender shall have all the rights and
remedies of a secured party under the Code and other legal and equitable rights
to which it may be entitled, including, without limitation, and without notice
to Borrower or Guarantor, the right to continue to collect all payments made on
the Pledged Notes Receivable and to apply such payments to the Obligations, and
to xxx in its own name an Applicable Underlying Borrower or other maker of any
defaulted Pledged Note Receivable. Lender may also exercise any and all other
rights or remedies afforded by any other Applicable Laws or by the Loan
Documents or, in the name and stead of Borrower, the Applicable Underlying Loan
Documents, as Lender shall deem appropriate, at law, in equity, or otherwise,
including but not limited to the right to bring suit or other proceeding, either
for specific performance (whether or not an adequate remedy exists at law or
failure to grant specific performance would result in irreparable harm) of any
covenant or condition contained in the Loan Documents or the Applicable
Underlying Loan Documents or in aid of the exercise of any right or remedy
granted to Lender in the Loan Documents. Lender shall also have the right to
require Borrower to assemble any of the Collateral not in Lender's possession,
at Borrower's expense, and make it available to Lender at a place to be
determined by Lender that is reasonably convenient to both parties, and Lender
shall have the right to take immediate possession of all or any portion of the
Collateral or Applicable Underlying Loan Collateral and may enter any Applicable
Resort or any of the premises of Borrower or an Applicable Underlying Borrower
or wherever the Collateral or Applicable Underlying Loan Collateral shall be
located, with or without process of law wherever the Collateral or Applicable
Underlying Loan Collateral may be, and, to the extent such premises are not the
property of Lender, to keep and store the same on said premises until sold (and
if said premises be the property of Borrower, Borrower agrees not to charge
Lender for use and occupancy, rent, or storage of the Collateral, for a period
of at least sixty (60) days after sale or disposition of the Collateral or
Applicable Underlying Loan Collateral).
8.2 Notice of Sale. Reasonable notification of the time and place of any
public sale of the Collateral or reasonable notification of the time after which
any private sale or other intended disposition of the Collateral is to be made
shall be sent to Borrower and to any other Person entitled under the Code to
notice; provided, however, that if the Collateral threatens to decline speedily
in value or is of a type customarily sold on a recognized market, Lender may
sell or otherwise dispose of the Collateral without advertisement or other
notice of any kind. It is agreed that notice sent not less than ten (10)
calendar days prior to the taking of the action to which such notice relates is
reasonable notification and notice for the purposes of this Section 8.2. Lender
shall have the right to bid at any public or private sale on its own behalf. Out
of money arising from any such sale, Lender shall retain an amount equal to all
costs and charges, including attorneys' fees, that it has incurred or may incur
for advice, counsel, or other legal services or for pursuing, reclaiming,
seeking to reclaim, taking, keeping, removing, storing, and advertising such
Collateral for sale, selling same, and any and all other charges and expenses in
connection therewith and in satisfying any prior Liens thereon. Any balance
shall be applied against the Obligations, and in the event of deficiency,
Borrower shall remain liable to Lender. In the event of any surplus, such
surplus shall be paid to Borrower or to such other Persons as may be legally
entitled to such surplus. If, by reason of any suit or proceeding of any kind,
nature, or description against Borrower, or by Borrower or any other party
against Lender, which in Lender's determination makes it advisable for Lender to
seek counsel for the protection and preservation of its Liens and security
interests, or to defend its own interest, such expenses and counsel fees shall
be allowed to Lender, and the same shall be made a further charge and Lien upon
the Collateral.
In view of the fact that federal and state securities laws may impose
certain restrictions on the methods by which a sale of certain Collateral may be
effected after an Event of Default, Borrower agrees that upon the occurrence or
existence of an Event of Default, Lender may, from time to time, attempt to sell
all or any part of such Collateral by means of a private placement restricting
the bidding and prospective purchasers to those who will represent and agree
that they are purchasing for investment only and not for, or with a view to,
distribution. In so doing, Lender may solicit offers to buy such Collateral, or
any part of it for cash, from a limited number of investors deemed by Lender, in
its reasonable judgment, to be responsible parties who might be interested in
purchasing the Collateral, and if Lender solicits such offers from not less than
two (2) such investors, then the acceptance by Lender of the highest offer
obtained therefrom shall be deemed to be a commercially reasonable method of
disposition of such Collateral.
8.3 Application of Collateral; Termination of Agreements. Upon the
occurrence of any Event of Default, Lender may, with or without proceeding with
such sale or foreclosure or demanding payment or performance of the Obligations,
without notice, terminate Lender's further performance under this Agreement or
any other agreement or agreements between Lender and Borrower, Guarantor, or any
Affiliate of Borrower, without further liability or obligation by Lender, and
may also, at any time, appropriate and apply on any Obligations any and all
Collateral in its, Custodian's, or Lockbox Agent's possession, custody, or
control any and all balances, credits, deposits, accounts, reserves,
indebtedness, or other monies due or owing to Borrower held by Lender hereunder
or under any other financing agreement or otherwise, whether accrued or not.
Neither such termination, nor the termination of this Agreement by lapse of
time, the giving of notice, or otherwise, shall absolve, release, or otherwise
affect the liability of Borrower in respect of transactions prior to such
termination, or affect any of the Liens, security interests, rights, powers, and
remedies of Lender, but they shall, in all events, continue until all of the
Obligations have been satisfied in full.
8.4 Rights of Lender Regarding Collateral. In addition to all other rights
possessed by Lender, Lender, at its option, may from time to time after there
shall have occurred an Event of Default, and for so long as such Event of
Default remains uncured, take the following actions:
(a) Transfer all or any part of the Collateral into the name of Lender or
its nominee;
(b) Take control of the proceeds of any of the Collateral;
(c) Extend or renew the Loan and grant releases, compromises, or
indulgences with respect to the Obligations, any portion thereof, any extension,
or renewal thereof, or any security therefor, to any obligor hereunder or
thereunder; and
(d) Exchange certificates or instruments representing or evidencing
the Collateral for certificates or instruments of smaller or larger
denominations for any purpose consistent with the terms of this Agreement.
8.5 Delegation of Duties and Rights. Lender may perform any of its duties
and/or exercise any of its rights or remedies under the Loan Documents by or
through its officers, directors, employees, attorneys, agents, or other
representatives, including but not limited to Verification Agent. To the maximum
extent practicable in light of all relevant facts and circumstances, Lender will
attempt to avoid any duplication of effort and cost to Borrower in connection
with any such delegation on Lender's part.
8.6 Lender Not in Control. None of the covenants or other provisions
contained in this Agreement or in any other Loan Document shall give or be
interpreted as giving Lender the right or power to exercise control over the
affairs and/or management of Borrower or Guarantor.
8.7 Waivers. The acceptance by Lender at any time and from time to time of
partial payments of the Loan or performance of the Obligations shall not be
deemed to be a waiver of any Event of Default then existing. No waiver by Lender
of any Event of Default shall be deemed to be a waiver of any other or
subsequent Event of Default. No delay or omission by Lender in exercising any
right or remedy under the Loan Documents shall impair such right or remedy or be
construed as a waiver thereof or an acquiescence therein, nor shall any single
or partial exercise of any such right or remedy preclude other or further
exercises thereof, or the exercise of any other right or remedy under the Loan
Documents or otherwise. Further, except as otherwise expressly provided in this
Agreement or by applicable law, Borrower and each and every surety, endorser,
guarantor, and other party liable for the payment or performance of all or any
portion of the Obligations, severally waive notice of the occurrence of any
Default, Event of Default, presentment, and demand for payment, protest, and
notice of protest, notice of intention to accelerate, acceleration, and
nonpayment, and agree that their liability shall not be affected by any renewal
or extension in the time of payment of the Loan, or by any release or change in
any security for the payment or performance of the Loan, regardless of the
number of such renewals, extensions, releases, or changes.
8.8 Cumulative Rights. All rights and remedies available to Lender under
the Loan Documents shall be cumulative of and in addition to all other rights
and remedies granted to Lender under any of the Loan Documents, at law, or in
equity, whether or not the Loan is due and payable and whether or not Lender
shall have instituted any suit for collection or other action in connection with
or pursuant to the Loan Documents.
8.9 Expenditures by Lender. Any amounts expended by or on behalf of Lender
pursuant to the exercise of any right or remedy provided herein or available at
law or in equity shall become part of the Obligations and shall bear interest at
the Default Rate from the date of such expenditure until the date repaid.
8.10 Diminution in Value of Collateral. Lender shall not have any
liability or responsibility whatsoever for any diminution or loss in value of
any of the Collateral or Applicable Underlying Loan Collateral, specifically
including that which may arise from Lender's negligence or inadvertence, whether
such negligence or inadvertence is the sole or contributing cause of any damage.
SECTION 9. CERTAIN RIGHTS OF LENDER
------------------------
9.1 Protection of Collateral. Lender may, at any time and from time to
time, take such actions as Lender deems necessary or appropriate to protect
Lender's Liens and security interests in and to preserve the Collateral, and to
establish, maintain, and protect the enforceability of Lender's rights with
respect thereto, all at the expense of Borrower. Borrower agrees to cooperate
fully with all of Lender's efforts to preserve the Collateral and Lender's
Liens, security interests, and rights and will take such actions to preserve the
Collateral and Lender's Liens, security interests, and rights as Lender may
direct, including, without limitation, by promptly paying, upon Lender's demand
therefor, all documentary stamp taxes or other taxes that may be or may become
due in respect of any of the Collateral. All of Lender's expenses of preserving
the Collateral and its Liens and security interests and rights therein shall be
added to the principal amount of the Loan and secured by the Collateral.
9.2 Performance by Lender. If Borrower fails to perform any agreement
contained herein, Lender may itself perform, or cause the performance of, such
agreement, and the expenses of Lender incurred in connection therewith shall be
payable by Borrower under Section 9.5 hereof. In no event, however, shall Lender
have any obligation or duty whatsoever to perform any covenant or agreement of
Borrower or any Applicable Underlying Borrower contained herein or in any of the
other Loan Documents, any Applicable Underlying Loan Documents, or any
Applicable Timeshare Documents, and any such performance by Lender shall be
wholly discretionary with Lender. The performance by Lender of any agreement or
covenant of Borrower or any Applicable Underlying Borrower on any occasion shall
not give rise to any duty on the part of Lender to perform any such agreements
or covenants on any other occasion or at any time. In addition, Borrower
acknowledges that Lender shall not at any time or under any circumstances
whatsoever have any duty to Borrower or to any other Person to exercise any of
Lender's rights or remedies hereunder.
9.3 No Liability of Lender. Lender is obligated to perform all covenants
and obligations of Lender hereunder, including but not limited to making
Advances to Borrower, subject to all of the terms, provisions, and conditions
hereof and of the other Loan Documents. However, neither the acceptance of this
Agreement by Lender nor the exercise of any rights hereunder by Lender shall be
construed in any way as an assumption by Lender of any obligations,
responsibilities, or duties of Borrower or any Applicable Underlying Borrower
arising in connection with any Applicable Resort, all or any portion of the
Collateral or Applicable Underlying Loan Collateral, under any Applicable
Timeshare Documents, or under any Applicable Laws, or in connection with any
other business of Borrower or the Collateral, nor shall it otherwise bind Lender
to the performance of any obligations with respect to an Applicable Resort, the
Collateral, or any Applicable Underlying Loan Collateral, it being expressly
understood that Lender shall not be obligated to perform, observe, or discharge
any obligation, responsibility, duty, or liability of Borrower or any Applicable
Underlying Borrower with respect to any Applicable Resort, any of the
Collateral, any of the Applicable Underlying Loan Collateral, under any of the
Applicable Timeshare Documents, or under any Applicable Laws, including but not
limited to appearing in or defending any action, expending any money, or
incurring any expense in connection therewith. Without limiting the foregoing,
neither this Agreement, any action or actions on the part of Lender taken
hereunder nor the acquisition of the Pledged Notes Receivable and/or the other
Collateral by Lender prior to or following the occurrence of an Event of Default
shall constitute an assumption by Lender of any obligations of Borrower with
respect to an Applicable Resort or such Collateral, or any documents or
instruments executed in connection therewith, including but not limited to the
Applicable Underlying Loan Documents, and Borrower shall continue to be liable
for all of its obligations thereunder or with respect thereto. Borrower hereby
agrees to indemnify, protect, defend, and hold Lender harmless from and against
any and all claims, demands, causes of action, losses, damages, liabilities,
suits, costs, and expenses, including, without limitation, attorneys' fees and
court costs, asserted against or incurred by Lender by reason of, arising out
of, or connected in any way with (i) any failure or alleged failure of Borrower
to perform any of its covenants or obligations with respect to an Applicable
Resort or all or any portion of the Collateral or Applicable Underlying Loan
Collateral; (ii) a breach of any certification, representation, warranty, or
covenant of Borrower set forth in any of the Loan Documents; (iii) the ownership
of the Pledged Notes Receivable, the other Collateral, and the rights, titles,
and interests assigned hereby, or intended so to be; (iv) the debtor-creditor
relationships between Borrower, on the one hand, and the Applicable Underlying
Borrowers or Lender, as the case may be, on the other hand; or (v) the Pledged
Notes Receivable, the Applicable Mortgages, or the management or operation of
the Applicable Resorts. The obligations of Borrower to indemnify, protect,
defend, and hold Lender harmless as provided in this Agreement are absolute,
unconditional, present, and continuing, and shall not be dependent upon or
affected by the genuineness, validity, regularity, or enforceability of any
claim, demand, or suit from which Lender is indemnified. The indemnity
provisions in this Section 9.3 shall survive the complete satisfaction of the
Obligations and the termination of this Agreement and remain binding and
enforceable against Borrower, together with its successors and assigns. Borrower
hereby waives all notices with respect to any losses, damages, liabilities,
suits, costs, and expenses, and all other demands whatsoever hereby indemnified,
and agrees that its obligations under this Agreement shall not be affected by
any circumstances, whether or not referred to above, that might otherwise
constitute legal or equitable discharges of its obligations hereunder. If a
court of competent jurisdiction should determine that Borrower is entitled to
recover damages from Lender for any reason or upon any cause, claim, or
counterclaim, in connection with the Loan or the transactions provided for or
contemplated pursuant to this Agreement or the other Loan Documents, Borrower
stipulates and agrees that any such damages or awards shall be limited to the
amount of interest theretofore paid to Lender pursuant to the Note as of the
date of such determination.
9.4 Right to Defend Action Affecting Security. Lender may, at Borrower's
expense, appear in and defend any action or proceeding, at law or in equity,
that Lender in good faith believes may affect the Liens or security interests
granted under this Agreement, including, without limitation, with respect to the
Pledged Notes Receivable, the Applicable Mortgages, the value of the Collateral,
or Lender's rights under any of the Loan Documents.
9.5 Expenses. All expenses payable by Borrower under any provision of this
Agreement shall be Obligations of Borrower, and if paid by Lender, shall be
repaid by Borrower to Lender, upon demand, and shall bear interest at the
Default Rate from the date of payment of such expense(s) by Lender until repaid
by Borrower.
9.6 Lender's Right of Set-Off. Lender shall have the right to set-off
against any or all of the Collateral any Obligations then due and unpaid by
Borrower.
9.7 Right of Lender to Extend Time of Payment, Substitute, Release
Security, Etc. Without affecting the liability of any Person or entity,
including, without limitation, any Applicable Underlying Borrower, for the
payment of any of the Obligations and without affecting or impairing Lender's
Lien and other rights in and to the Collateral, or the remainder thereof, as
security for the full amount of the Loan unpaid and the Obligations, Lender may
from time to time, without notice: (a) release any Person liable for the payment
of the Loan; (b) extend the time or otherwise alter the terms of payment of the
Loan; (c) accept additional security for the Obligations of any kind, including
deeds of trust or mortgages and security agreements; (d) alter, substitute, or
release any Collateral; (e) realize upon any Collateral for the payment of all
or any portion of the Loan in such order and manner as it may deem fit; and/or
(f) join in any subordination or other agreement affecting this Agreement or the
lien or charge thereof.
9.8 Assignment of Lender's Interest. Lender shall have the right to assign
the Loan and all or any portion of its rights in or pursuant to this Agreement
or any of the other Loan Documents to any subsequent holder or holders of the
Note or the Obligations that assumes Lender's obligations hereunder and is a
bank, pension fund, insurance company, or other institutional investor. The
consent of Borrower shall not be required prior to any such assignment's
becoming effective. Borrower shall be directly obligated to each assignee with
respect to the Obligations assigned to such assignee and shall have no rights of
setoff or other remedies against the assignee as a consequence of Lender's acts
or omissions under this Agreement prior to such assignment. Upon the
consummation of any assignment to an assignee pursuant to this Section 9.8,
Lender and Borrower shall, if Lender or its assignee desires that the assignment
be evidenced in part by a new promissory note, make appropriate arrangements for
a new promissory note or, as appropriate, a replacement promissory note to be
issued to Lender and for a new promissory note or, as appropriate, a replacement
promissory note, to be issued to the assignee, in each case in principal amounts
reflecting their respective rights to payment.
9.9 Notice to Purchaser. Borrower authorizes either Lender or Verification
Agent (but neither Lender nor Verification Agent shall be obligated) to
communicate at any time and from time to time with any Applicable Underlying
Borrower or any other Person primarily or secondarily liable under a Pledged
Note Receivable with regard to the Lien of the Lender thereon and any other
matter relating thereto; provided, however, that Lender shall not initiate any
communication regarding the Applicable Underlying Loan with any Applicable
Underlying Borrower or any other Person primarily or secondarily liable under a
Pledged Note Receivable unless an Event of Default exists, although it may
require Borrower or Verification Agent to do so. By no later than the Closing
Date, Borrower shall deliver to Lender notifications to the Applicable
Underlying Borrowers executed in blank by Borrower and in form acceptable to
Lender, pursuant to which the Applicable Underlying Borrowers (or other
obligors) are directed to remit all payments in respect of the Collateral to
Lockbox Agent or as Lender may otherwise require.
9.10 Collection of the Notes. Borrower hereby directs and authorizes each
Applicable Underlying Borrower and other Person liable for the payment of any
Pledged Note Receivable, and promptly after the Closing Date, shall direct in
writing each such Person, to pay each installment thereon to Lockbox Agent,
pursuant to the Lockbox Agreement, unless and until directed otherwise by
written notice from Lender or, at Lender's direction, from Borrower, after which
such parties are and shall be directed to make all further payments on the
Pledged Notes Receivable in accordance with the directions of Lender; provided,
however, that Lender shall not give any such notice to any Person unless an
Event of Default exists, although it may require Borrower to do so. Following
the occurrence of an Event of Default, Lender shall have the right to require
that all payments becoming due under the Pledged Notes Receivable be paid
directly to Lender or as it may otherwise direct, and Lender is hereby
authorized to receive, collect, hold, and apply the same in accordance with the
provisions of this Agreement but shall provide Borrower with accountings of all
such activity on at least as frequent a basis as Lockbox Agent was obligated to
provide accountings to Lender and Borrower, pursuant to the Lockbox Agreement.
In the event that following the occurrence of an Event of Default, Lender or
Lockbox Agent does not receive any installment of principal or interest due and
payable under any of the Pledged Notes Receivable on or prior to the date upon
which such installment becomes due, Lender may, at its election (but without any
obligation to do so), give or cause Lockbox Agent to give notice of such event
of default to the defaulting party or parties, and Lender shall have the right
(but not the obligation), subject to the terms of such Notes, to accelerate
payment of the unpaid balance of any of the Pledged Notes Receivable in default
and to foreclose each of the Applicable Mortgages securing the payment thereof,
and to enforce any other remedies available to the holder of such Pledged Notes
Receivable with respect to such event of default. Borrower hereby further
authorizes, directs, and empowers Lender (and Lockbox Agent or any other Person
as may be designated by Lender in writing) to collect and receive all checks and
drafts evidencing such payments and to endorse such checks or drafts in the name
of Borrower and, upon such endorsements, to collect and receive the money
therefor. The right to endorse checks and drafts granted pursuant to the
preceding sentence is irrevocable by Borrower, and the banks or banks paying
such checks or drafts upon such endorsements, as well as the signers of the
same, shall be as fully protected as though the checks or drafts had been
endorsed by Borrower.
9.11 Power of Attorney. Borrower does hereby irrevocably constitute and
appoint Lender as Borrower's true and lawful agent and attorney-in-fact, with
full power of substitution, for Borrower and in Borrower's name, place, and
stead, or otherwise, to (a) endorse any checks or drafts payable to Borrower in
the name of Borrower and in favor of Lender as provided in Section 9.10 hereof;
(b) to demand and receive from time to time any and all property, rights,
titles, interests, and Liens hereby sold, assigned, and transferred, or intended
so to be, and to give receipts for same; (c) upon an Event of Default, to
collect all rent, revenues, and income, pursuant to the terms of any Applicable
Mortgage; (d) from time to time, to institute and prosecute, in Lender's own
name, any and all proceedings at law, in equity, or otherwise, that Lender may
deem proper in order to collect, assert, or enforce any claim, right, or title,
of any kind, in and to the property, rights, titles, interests, and Liens hereby
sold, assigned, or transferred, or intended so to be, and to defend and
compromise any and all actions, suits, or proceedings in respect of any of the
said property, rights, titles, interests, and Liens; (e) upon an Event of
Default, to change Borrower's post office mailing address; and (f) generally to
do all and any such acts and things in relation to the Collateral as Lender
shall in good xxxxx xxxx advisable. Borrower hereby declares that the
appointment made and the powers granted pursuant to this Section 9.11 are
coupled with an interest and are and shall be irrevocable by Borrower in any
manner, or for any reason, unless and until a release of the same is executed by
Lender and duly recorded in the appropriate public records of both Onondaga
County, New York, and Maricopa County, Arizona.
9.12 Relief from Automatic Stay, Etc. To the fullest extent permitted by
law, in the event that Borrower or Guarantor shall make application for or seek
relief or protection under the federal bankruptcy code (the "Bankruptcy Code")
or any other Debtor Relief Laws, or in the event that any involuntary petition
is filed against the Borrower or Guarantor under such Code or other Debtor
Relief Laws and not dismissed with prejudice within forty-five (45) days, the
automatic stay provisions of Section 362 of the Bankruptcy Code are hereby
modified as to Lender to the extent necessary to implement the provisions hereof
permitting set-off and the filing of financing statements or other instruments
or documents; and Lender shall automatically and without demand or notice (each
of which is hereby waived by Borrower) be entitled to immediate relief from any
automatic stay imposed by Section 362 of the Bankruptcy Code or otherwise, on or
against the exercise of the rights and remedies otherwise available to Lender as
provided in the Loan Documents. In addition, in the event that relief is sought
by or against Borrower under the Bankruptcy Code, Borrower agrees not to seek,
directly or indirectly, in any ensuing bankruptcy proceeding, any extension of
the exclusivity period otherwise available to a debtor under the Bankruptcy
Code, including, without limitation, the exclusivity period provided for under
Section 1121(b) of the Bankruptcy Code.
9.13 Investigations and Inquiries. Borrower hereby authorizes Lender to
conduct such investigations and inquiries concerning Borrower, Guarantor, the
Applicable Resorts, the Applicable Underlying Borrowers, the Applicable
Underlying Guarantors, the Collateral, and the Applicable Underlying Loan
Collateral as Lender shall deem necessary or desirable in connection with its
monitoring of the Loan and the Collateral therefor, and all such Persons of whom
Lender may make such inquiry are empowered to cooperate with, and to provide all
requested information to, Lender.
9.14 Verification of Use. Lender shall be under no duty or obligation to
ascertain the manner in which Borrower or any Applicable Underlying Borrower has
used or will use the proceeds of the Loan or those of any Applicable Underlying
Loan. Lender's sole obligation shall be to advance the proceeds of the Loan
subject to, and in strict accordance with, the terms, provisions, and conditions
of this Agreement and the other Loan Documents. At no time shall Lender be
obligated to disburse funds in excess of amounts recommended by Verification
Agent. Lender's obligation to fund the Loan is limited to the principal amount
set forth herein and in the Note. Borrower is solely responsible for obtaining
any other financing that may be necessary in order to enable it to fund the
Applicable Underlying Loans or to repay the Loan on or prior to the Maturity
Date. It is expressly understood that Lender has no responsibility or obligation
whatsoever to provide to Borrower any further financing, whether in connection
with the Applicable Underlying Loans or otherwise.
SECTION 10. TERM OF AGREEMENT
-----------------
This Agreement shall continue in full force and effect, and the Liens and
security interests granted hereby and the duties, covenants, and liabilities of
Borrower hereunder, and all the terms, conditions, and provisions hereof
relating thereto shall continue to be fully operative until all of the
Obligations have been satisfied in full. Borrower expressly agrees that if
either Borrower or Guarantor makes a payment to Lender, which payment or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise required to be repaid to a trustee, receiver, or any
other party under any Debtor Relief Laws, state or federal law, common law, or
equitable cause, then to the extent of such repayment, the Obligations or any
part thereof intended to be satisfied and the Liens and security interests
provided for hereunder securing the same shall be revived and continued in full
force and effect as if said payment had not been made.
SECTION 11. MISCELLANEOUS
-------------
11.1 Notices. All notices, requests or demands required or permitted to be
given under the Loan Documents shall be in writing, and shall be deemed
effective (a) upon hand delivery, if hand delivered; (b) one (1) Business Day
after such are deposited for delivery via Federal Express or other nationally
recognized overnight courier service; or (c) three (3) Business Days after such
are deposited in the United States mails, certified or registered mail, all with
delivery charges and/or postage prepaid, addressed to the address specified
below, or to such other address as the party being notified may have designated
in a notice given to the other party. Written notice may be given by telecopy to
the telecopier number specified below or to such other telecopier number as the
party being notified may have designated in a notice given to the other party,
which notice shall be effective on the day of receipt if received during the
recipient's normal business hours on the day of receipt or otherwise on the next
Business Day; provided that such notice shall not be deemed effective unless not
later than the next Business Day, a copy of such notice is hand delivered or
deposited for delivery via courier or in the United States mails in accordance
with the requirements set forth above.
If to Borrower:...Resort Funding, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, President
Telecopy No.: (000) 000-0000
With a copy to: ..Resort Funding, Inc.
x/x Xxxxxxx Xxxxxxx
000 Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq., General Counsel
Telecopy No.: (000) 000-0000
If to Lender: .... FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President - Resort Finance
Telecopy No.: (000) 000-0000
With a copy to: ..FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President - Associate General Counsel
Telecopy No.: (000) 000-0000
11.2 Survival. All representations, warranties, covenants, and agreements
made by Borrower herein, in the other Loan Documents, or in any other agreement,
document, instrument, or certificate delivered by or on behalf of Borrower under
or pursuant to the Loan Documents shall be considered to have been relied upon
by Lender and shall survive the delivery to Lender of such Loan Documents (and
each part thereof), regardless of any investigation made by or on behalf of
Lender.
11.3 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS
MAY BE EXPRESSLY PROVIDED THEREIN TO THE CONTRARY) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, EXCLUSIVE OF ITS
CHOICE OF LAWS PRINCIPLES.
11.4 CHOICE OF JURISDICTION; WAIVER OF VENUE. EACH OF BORROWER AND LENDER:
(A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS, JURISDICTION AND VENUE OF
THE COURTS OF THE STATE OF ARIZONA, MARICOPA COUNTY, AND TO THE PROCESS,
JURISDICTION, AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR
RELATING TO ANY DOCUMENT OR THE SUBJECT MATTER THEREOF, OR, IF LENDER INITIATES
SUCH ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, AND THE
CHOICE OF SUCH VENUE SHALL IN ALL INSTANCES BE AT LENDER'S ELECTION; AND (B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT
TO ASSERT BY WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH OF BORROWER AND LENDER HEREBY WAIVES THE RIGHT TO COLLATERALLY
ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
Borrower Initials (________)
Lender Initials (________)
11.5 Limitation on Interest. Lender and Borrower intend to comply at all
times with all applicable usury laws. All agreements between Lender and
Borrower, whether now existing or hereafter arising and whether written or oral,
are hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of the Note or otherwise, shall the interest
contracted for, charged, received, paid, or agreed to be paid to Lender exceed
the highest lawful rate permissible under applicable usury laws. If, from any
circumstance whatsoever, fulfillment of any provision hereof, of the Note, or of
any other Loan Documents shall involve transcending the limit of such validity
prescribed by any law which a court of competent jurisdiction may deem
applicable hereto, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and if from any circumstance Lender shall
ever receive anything of value deemed interest by applicable law that would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the principal of the Loan and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal of the Loan, such excess shall be refunded to Borrower. All interest
paid or agreed to be paid to Lender shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full period
until payment in full of the principal so that the interest on the Loan for such
full period shall not exceed the highest lawful rate. Borrower agrees that in
determining whether or not any interest payment under the Loan Documents exceeds
the highest lawful rate, any non-principal payment (except payments specifically
described in the Loan Documents as "interest"), including without limitation,
prepayment fees and late charges, shall, to the maximum extent not prohibited by
law, be deemed an expense, fee, premium, or penalty rather than interest. Lender
hereby expressly disclaims any intent to contract for, charge, or receive
interest in an amount that exceeds the highest lawful rate. The provisions of
the Note, this Agreement, and all other Loan Documents are hereby modified to
the extent necessary to conform with the limitations and provisions of this
Section 11.5, and this Section 11.5 shall govern over all other provisions in
any document or agreement now or hereafter existing. This Section 11.5 shall
never be superseded or waived unless there is a written document executed by
Lender and Borrower expressly declaring the usury limitation of this Agreement
to be null and void, and no other method or language shall be effective to
supersede or waive this paragraph.
11.6 Invalid Provisions. If any provision of this Agreement or any of the
other Loan Documents is held to be illegal, invalid, or unenforceable under
present or future laws effective during the term thereof, such provision shall
be fully severable, this Agreement and the other Loan Documents shall be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof or thereof, and the remaining provisions
hereof or thereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom. Any provision of this Agreement or any other Loan Document that is
held to be illegal, invalid, or unenforceable in a particular Applicable
Jurisdiction shall remain valid and enforceable in all other Applicable
Jurisdictions. Furthermore, in lieu of any such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement and/or the other Loan Documents (as the case may be) a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
11.7 Successors and Assigns. This Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns; provided, however, that Borrower may not
transfer or assign any of its rights or obligations under this Agreement or the
other Loan Documents without the prior written consent of Lender. This Agreement
and the transactions provided for or contemplated hereunder or under any of the
other Loan Documents are intended solely for the benefit of the parties hereto.
No third party shall have any rights or derive any benefits under or with
respect to this Agreement or the other Loan Documents except as specifically set
forth herein or otherwise provided in a written document signed by Borrower and
Lender. No Person other than Borrower shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Lender will refuse to make Advances in the absence of strict
compliance with any or all thereof, and no other Person, other than Borrower,
under any circumstances whatsoever, shall be deemed to be a beneficiary of such
conditions, any or all of which Lender freely may waive, in whole or in part, at
any time if it deems it desirable to do so. In particular, Lender makes no
representation and assumes no obligation as to third parties concerning the
quality of the construction of the Financed Improvements by any Applicable
Underlying Borrower or the absence therefrom of defects. In this connection,
Borrower agrees to and shall indemnify Lender from any liability, claim, or
loss, together with attorneys' fees and costs, resulting from the disbursement
of Loan proceeds or from the condition of the Financed Improvements, whether
related to the quality of construction or otherwise, and whether arising during
or after the term of the Loan. This provision shall survive the repayment of the
Loan and continue in full force and effect so long as the possibility of such
liability or claim exists.
11.8 Amendment. This Agreement (including all exhibits and schedules
hereto) may not be amended or modified, and no term, provision, or condition
hereof may be waived, except by a written instrument that is signed by all of
the parties hereto.
11.9 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signature thereto and hereto were on the same instrument. This
Agreement shall become effective upon Lender's receipt of one (1) or more
counterparts hereof signed by Borrower and Lender.
11.10 Lender Not a Fiduciary. The relationship between Borrower and Lender
is solely that of debtor and creditor, and Lender has no fiduciary or other
special relationship with Borrower, and no term or provision of any of the Loan
Documents shall be construed so as to deem the relationship between Borrower and
Lender to be other than that of debtor and creditor.
11.11 Release and Return of Notes Receivable and Collateral. In the event
that an a Pledged Note Receivable has been repaid in full and all obligations of
the Applicable Underlying Borrower under the Loan Documents and the related
Applicable Underlying Loan Documents have been paid and performed in full, then
within a reasonable time thereafter not to exceed thirty (30) days, Lender shall
remove (or authorize Borrower to remove) from the Pledged Note Receivable the
allonges endorsing such instruments to Lender and deliver such Pledged Notes
Receivable and Pledged Consumer Notes Receivable, together with any other
nonrecourse collateral reassignment documents requested and prepared by
Borrower, at Borrower's sole cost and expense, free and clear of any Liens or
encumbrances by any Person claiming by, through, or under Lender. In the event
that all Obligations are satisfied, Lender shall release all Collateral for the
Loan as set forth in this Section 11.11.
11.12 Accounting Principles. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be determined or made in accordance
with GAAP consistently applied at the time in effect, to the extent applicable,
except where such principles are inconsistent with the requirements of this
Agreement.
11.13 Entire Agreement; Inconsistencies. This Agreement and the other Loan
Documents, including the exhibits and schedules to them, comprise the entire
agreement between the parties relating to the subject matter hereof and
supersede all prior agreements and understandings, both oral and written,
between the parties hereto relating to the subject matter hereof (except as
otherwise expressly provided herein), may not be changed or terminated orally or
by course of conduct, and shall be deemed effective as of the Closing Date. In
the event of any ambiguity or inconsistency between the provisions of the Loan
Documents, the provisions imposing the greatest obligations upon Borrower and
granting the most extensive rights to Lender shall control.
11.14 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF BORROWER AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY
ANY RIGHT, POWER, REMEDY, OR DEFENSE ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR
THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH RESPECT TO
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN),
OR ACTIONS OF ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF BORROWER AND LENDER
FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED. FURTHER, BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF LENDER, INCLUDING LENDER'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTANCE OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THE WAIVER
AND STIPULATIONS OF BORROWER AND LENDER IN THIS SECTION 11.14 SHALL SURVIVE THE
FINAL PAYMENT OR PERFORMANCE OF ALL OF THE OBLIGATIONS AND THE RESULTING
TERMINATION OF THIS AGREEMENT.
Borrower Initials (________)
Lender Initials (________)
11.15 Incorporation of Exhibits and Schedules. This Agreement, together
with all exhibits and schedules hereto, constitute one (1) document and
agreement that is referred to herein by the use of the defined term "Agreement."
Such exhibits and schedules are incorporated herein as though fully set out in
this Agreement. The definitions contained in any part of this Agreement shall
apply to all parts of this Agreement.
11.16 Consent to Advertising and Publicity of Applicable Timeshare
Documents. Lender routinely advertises the transactions to which it is a party
in newspapers, industry periodicals, and other miscellaneous print and
electronic literature. However, Lender will not use the name, logo, insignia,
descriptive art work, trade name, trademark, or other similar material of
Borrower or Guarantor in any such advertisement, without the consent of the
Person whose name or property right is being used; and Lender will not identify
any Applicable Underlying Loan in any such advertisement without the consent of
Borrower. Any consent required from a Person pursuant to the preceding
provisions of this Section 11.16 may be given or withheld in such Person's sole
and absolute discretion.
11.17 Directly or Indirectly. Where any provision in the Agreement refers
to action to be taken by any Person, or which such Person is prohibited from
taking, such provisions shall be applicable, whether such action is taken
directly or indirectly by such Person.
11.18 Captions. Section captions have been included in this Agreement for
convenience of reference only and should not be relied upon or used in
interpreting the meaning or intent of any provision hereof.
11.19 Gender. Words of any gender in this Agreement shall include each
other gender, where appropriate.
11.20 No Duty. All attorneys, accountants, appraisers, consultants,
custodians, and other professionals retained by Lender in connection with the
Loan shall have the right to act exclusively in the interest of Lender and shall
have no duty of disclosure, duty of loyalty, duty of care, or other duty or
obligation of any kind or nature whatsoever to Borrower or any other Person.
11.21 Reimbursement for Taxes. Borrower will promptly, upon written demand
from Lender, reimburse Lender for any taxes assessed against Lender by the State
of Arizona or any subdivision thereof that is on account of or measured by the
interest income received by Lender under the Pledged Notes Receivable and the
Applicable Mortgages assigned to Lender pursuant to this Agreement or in any way
imposed upon Lender in connection with the transactions contemplated hereunder,
including, without limitation, any general intangible tax or documentary tax;
provided, however, that Borrower shall not be responsible for paying any income
or profit-based tax assessed against Lender.
11.22 Submissions.
(a) All documents, agreements, reports, surveys, appraisals,
insurance policies, references, financial information, and other submissions
required to be furnished by Borrower or Guarantor to Lender hereunder or
pursuant to any of the other Loan Documents (collectively "Submissions") shall
be in form and content satisfactory to Lender and prepared at Borrower's or an
Applicable Underlying Borrower's expense.
(b) Lender shall have the prior right of approval of any Person
responsible for preparing a Submission (a "Preparer") and may reject any
Submission if Lender believes that the experience, skill, or reputation of the
applicable Preparer is unsatisfactory in any respect whatsoever.
(c) All reports and appraisals required to be furnished by Borrower
or Guarantor to Lender hereunder or pursuant to any of the other Loan Documents
shall specifically be addressed to Lender and include the following statement:
THE UNDERSIGNED ACKNOWLEDGES THAT FINOVA CAPITAL CORPORATION IS RELYING ON
THE WITHIN INFORMATION IN CONNECTION WITH ITS ADVANCES TO BORROWER ON THE
SUBJECT PROPERTY.
(d) Whether or not expressly stated herein, all consents and
approvals granted by Lender hereunder shall be valid and effective only if
contained in a written document or instrument that has been signed by a duly
authorized representative of Lender.
11.23 Confidentiality. Each party hereto acknowledges and agrees that the
material terms hereof and of the other Loan Documents are and shall remain
strictly confidential. No party hereto shall ever disclose the material terms
and provisions hereof without the express prior written consent of the other
parties; provided, however, that the disclosure of the material terms and
provisions of this Agreement to a party's shareholders, officers, directors,
principals, attorneys, accountants, or lenders, or if required by law or
subpoena, shall not constitute a breach of this Section 11.23. The parties
hereto shall take all appropriate measures to prevent the inadvertent or
unintentional disclosure of the material terms and provisions hereof.
11.24 Year 2000 Issues. Borrower has taken all action necessary to assure
that there will be no material adverse change to Borrower's business by reason
of the advent of the year 2000, including, without limitation, that all
computer-based systems, embedded microchips and other processing capabilities
effectively recognize and process dates after April 1, 1999. Borrower has taken
all actions necessary in Lender's reasonable judgment to assure that there will
be no material adverse change to Borrower's business by reason of the advent of
the year 2000, including without limitation that all computer-based systems,
embedded microchips and other processing capabilities effectively recognize and
process all dates. Promptly after Lender's request from time to time, Borrower
shall provide to Lender assurance reasonably acceptable to Lender that
Borrower's computer-based systems, embedded microchips and other processing
capabilities effectively recognize and process all dates.
11.25 Standards Applied to Lender's Actions. Unless otherwise specifically
stipulated elsewhere in the Loan Documents, if a matter is left in the Loan
Documents to the decision, right, requirement, request, determination, judgment,
opinion, approval, consent, waiver, satisfaction, acceptance, agreement, option,
election or discretion of Lender, its employees, Lender's counsel or any agent
for or independent contractor of Lender, such action shall be deemed to be
exercisable by Lender or such other person in its sole and absolute discretion
and according to standards established in its sole, absolute and unlimited
discretion. Without limiting the generality of the foregoing, "option" and
"discretion" shall be implied by use of the words "if" or "may". However,
whenever the Loan Documents contain the terms "reasonably satisfactory to
Lender," "reasonably determined by Lender," "reasonably acceptable to Lender,"
"reasonable consent of Lender," "Lender shall reasonably elect," "Lender shall
reasonably request," "reasonably approved by Lender" or similar terms wherein
the word reasonable or a derivative thereof is used with regard to an action of
Lender: (a) such terms shall mean satisfactory to, at the election of,
determined by, acceptable to or requested by, as applicable, Lender in its sole
(but reasonably exercised) discretion under standards applicable to commercial
lenders under the laws of the State of Arizona; and (b) it is the intention of
the parties to permit Lender a broad latitude in which to exercise its
discretion, acknowledging that, while such discretion may not be exercised
arbitrarily or capriciously, it may be exercised conservatively for Lender's
protection and benefit. By way of illustration, and not of limitation, it shall
not be unreasonable for Lender, in exercising its discretion, to make
conservative assumptions regarding the possible outcome of future events.
11.26 Scope of Attorneys' Fees. As used in the Loan Documents, the term
"attorneys' fees" includes the reasonable fees of attorneys licensed to practice
law in any jurisdiction, law clerks, paralegals, investigators and others not
admitted to the bar but performing services under the supervision of a licensed
attorney, and the expenses (including, without limitation, normal and customary
charges for telecopy and photocopy services and clerical overtime) incurred by
them in the performance of their services. As used in the Loan Documents,
attorneys' fees incurred by Lender in the enforcement of any remedy or covenant
include, without limitation, attorneys' fees incurred in any foreclosure of
liens or security interests granted under Loan Documents, in protecting or
sustaining the lien or priority of the Collateral, or in any proceeding arising
from or connected with any such matter, including any bankruptcy, receivership,
injunction or other similar proceeding, or any appeal from or petition for
review of any such matter, and with or without litigation.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
duly executed and delivered effective as of the date first above written.
BORROWER:
RESORT FUNDING, INC., a Delaware corporation
By: /s/
Type/Print Name: Xxxxxx X. Xxxxxx
-------------------
Title: Senior Vice President
LENDER:
FINOVA CAPITAL CORPORATION, a Delaware corporation
By: /s/
Type/Print Name: Xxxxx X. XxXxxxxx
Title: Vice President
Exhibit 10.18
-91-
11728.18700.386231-7
LIST OF EXHIBITS
EXHIBIT "A" Lockbox Agreement
EXHIBIT "B" Permitted Liens and Encumbrances
EXHIBIT "C" Servicing Agreement
EXHIBIT "D" Draw Request
EXHIBIT "E" Currently Pending Litigation
EXHIBIT "F" Borrowing Base Report
EXHIBIT "G" Form of Pledges and Assignments of Notes Receivable and
Applicable Mortgages
