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EXHIBIT 10.6
REVOLVING LOAN AND SECURITY AGREEMENT
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REVOLVING LOAN AND SECURITY AGREEMENT ("Agreement") entered into as of
October____, 1996, by CS FIRST BOSTON MORTGAGE CAPITAL CORP., a Delaware
corporation ("Lender"), and SILVERLEAF VACATION CLUB, INC., a Texas
corporation, ("Borrower").
RECITALS:
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A. Borrower has requested that Lender: (i) make a revolving loan
secured by receivables the loan to be in the amount of $40,000,000, and (ii)
make Borrower a separate $5,400,000 inventory and development loan in
accordance with the terms of a separate Loan and Security Agreement of even
date herewith.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto do hereby
agree as follows:
1. DEFINITIONS
As used in this Agreement and the other Documents (as defined below)
unless otherwise expressly indicated in this Agreement or the other
Documents, the following terms shall have the following meanings (such
meanings to be applicable equally both to the singular and plural
terms defined).
1.1 "Advance": an advance of the proceeds of the Loan by Lender on
behalf of Borrower in accordance with the terms and provisions
of this Agreement.
1.2 "Affiliate": with respect to any individual or entity, any
other individual or entity that directly or indirectly,
through one or more intermediaries, controls, or is controlled
by, or is under common control with, such individual or
entity.
1.3 "Agents": the Servicing Agent, Custodian Agent and the Lockbox
Agent.
1.4 "Applicable Usury Law": the usury law chosen by the parties
pursuant to the terms of paragraph 8.11 or such other usury
law which is applicable if such usury law is not.
1.5 "Articles of Organization": the charter, articles, operating
agreement, partnership agreement, by-laws and any other
written documents evidencing the formation, organization and
continuing existence of an entity.
1.6 "Assignments": a written assignment or assignments, executed
by Borrower, as required by Lender, and creating in favor of
Lender, as security for the Performance of the Obligations, a
perfected, direct, first and (subject only to the Permitted
Encumbrances) exclusive assignment of: all leases, sales
contracts,
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rents, sales and other proceeds pertaining to or arising from
the Receivables Collateral Servicing Agreement and the
Receivables Collateral; as such assignments may be from time
to time renewed, amended, restated or replaced.
1.7 "Associations": The Time-Share Associations.
1.8 "Borrower": Silverleaf Vacation Club, Inc., a Texas
corporation, and subject to the restrictions on merger,
consolidation and assignment contained in the Documents, its
successors and assigns.
1.9 "Borrowing Base": with respect to an Eligible Instrument,
shall be seventy percent (70%) of the unpaid principal balance
of such Eligible Instrument.
1.10 "Borrowing Term": the period commencing on the date of this
Agreement and ending on the close of Lender's normal business
hours on the date (or if not a Business Day, the first
Business Day thereafter) which is twenty-four (24) months from
the date of this Agreement. The Borrowing Term shall be
extended for a period of twelve (12) months provided the
Maturity Date has been extended at least twelve (12) months.
1.11 "Business Day": any day other than a Saturday, Sunday or a day
on which banks in New York, New York are required to close.
1.12 "Closing Date": the date on which this Agreement is executed
and delivered by the parties hereto.
1.13 "Collateral": the Receivables Collateral and any and all other
assets now or hereafter serving as security for the
Performance of the Obligations, and all products and proceeds
thereof.
1.14 "Structuring Advisory Fees": a fee for investment banking
advisory services in connection with the Loan and potential
securitization, payable by Borrower to Lender in the amount of
$400,000 which paid out of the initial Advance, but not later
than sixty (60) days after the date of this Agreement, all as
more specifically set forth in a separate agreement between
Borrower and Lender.
1.15 "Custodian" or "Custodian Agent": Comerica Bank-Texas or its
successors as Custodian, under the Custodian Agreement.
1.16 "Custodian Agreement": The document between Borrower, Lender
and Custodian where the Custodian will take possession of the
Designated Instruments on behalf of Lender as it may be from
time to time renewed, amended, restated or replaced.
1.17 "Default Rate": as defined in the Note.
1.18 "Designated Instrument": an Instrument which has been
designated by Borrower in writing to be part of the Designated
Receivables Collateral.
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1.19 "Designated Receivables Collateral": all Designated
Instruments which have not been replaced pursuant to paragraph
3.2, their proceeds, and that other part of the Receivables
Collateral related to the Designated Instruments.
1.20 "Documents": the Note, the Subordination Agreement(s), the
Security Documents, the Lockbox Agreement, the Servicing
Agreement, the Custodian Agreement, the Environmental
Certificate, this Agreement, and all other documents executed
in connection with the Loan, as they may be from time to time
renewed, amended, restated or replaced.
1.21 "Eligible Instrument": a Designated Instrument which conforms
to the standards set forth in Exhibit B. An Instrument that
has qualified as an Eligible Instrument shall cease to be an
Eligible Instrument upon the date of the first occurrence of
any of the following: (a) any installment due with respect to
that Instrument becomes more than 60 days past due; or (b)
that Instrument otherwise fails to continue to conform to the
standards set forth in Exhibit B.
1.22 "Environmental Certificate": an environmental certificate
executed by Borrower, and such other persons or parties as
required by Lender in the form of Exhibit C, as it may be from
time to time renewed, amended, restated or replaced.
1.23 "Event of Default": the meaning set forth in paragraph 7.1.
1.24 "Fee Simple Time-Share Instrument": an Instrument which has
arisen out of the sale of a Fee Simple Time-Share Interest.
1.25 "Fee Simple Time-Share Interest": an undivided 1/50 or 1/52
fee simple interest in a particular Unit, together with the
right to the exclusive occupancy and use of the Unit for seven
(7) consecutive days each calendar year together with an
appurtenant undivided fractional interest in the common
elements of the Time Share Project and the non-exclusive right
to use such common elements during the same seven (7) day
period including rights as members of Master Club.
1.26 "Incipient Default": an event which after notice and/or lapse
of time would constitute an Event of Default.
1.27 "Instrument": a promissory note which has arisen out of the
sale of a Time-Share Interest by a Time- Share Developer to a
Purchaser.
1.28 "Insurance Policies": the insurance policies that Borrower are
required to maintain and deliver pursuant to paragraph 6.8.
1.29 "Lender": CS First Boston Mortgage Capital Corp. or its
successors and assigns.
1.30 "Loan": the Revolving Receivables Loan made pursuant to this
Agreement and the other Documents.
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1.31 "Lockbox Agent": Texas Commerce Bank, or its successor as
lockbox agent under the Lockbox Agreement.
1.32 "Lockbox Agreement": an agreement to be made between Lender,
Borrower and Lockbox Agent, which provides for the Lockbox
Agent to collect through a lockbox payments made on
Instruments constituting part of the Receivables Collateral,
and to remit them to Lender subject to the provisions of
paragraph 5.5(b), as it may be from time to time renewed,
amended, restated or replaced.
1.33 "Management Agreement(s)": that certain Management Agreement
entered into as of March 28, 1990, by and between Master Club
and Borrower as amended by First Amendment to Management
Agreement entered into as of January 1, 1993; and Master Club
Agreement entered into as of March 28, 1990, by and between
Master Club and Ozark Mountain Resort Club, a Missouri
non-profit corporation, Holiday Hills Resort Club, a Missouri
non-profit corporation, The Xxxxx Lake Resort Club, a Texas
non-profit unincorporated association, The Villages Resort
Club, a Texas non-profit unincorporated association, The
Villages Club, an unincorporated association, Piney Shores
Resort Club, a Texas non-profit unincorporated association,
and Hill Country Resort Club, a Texas non-profit
unincorporated association as amended by First Amendment to
Master Club Agreement entered into as of March 28, 1990.
1.34 "Master Deed(s)": the Master Deeds whereby the Resorts were
conveyed from Freedom Financial Corporation to Borrower
(a) Warranty Deed dated May 31, 1989, and recorded in
Volume 2915, Page 215 of the Real Property Records of
Xxxxx County, Texas, and an Assignment of Development
and Contract Rights, dated May 31, 1989, and recorded
in Volume 2915, Page 274 of the Real Property Records
of Xxxxx County, Texas;
(b) Warranty deed Dated May 31, 1989, and recorded in
Book 194, Page 854 of the Deed Records of Stone
County, Missouri, and an Assignment of Development
Rights, Warranties, Service Contracts, and Trade Name
dated May 31, 1989, and recorded in Book 135, Page
360 of the Deed Records of Stone County, Missouri;
(c) Warranty Deed dated May 31, 1989, and recorded in
Volume 1162, Page 519 of the Real Property Records of
Wood County, Texas, and an Assignment of Development
Rights, Warranties, Service Contracts, and Trade Name
dated May 31, 1989, and recorded in Volume 1162, Page
526 of the Real Property Records of Wood County,
Texas;
(d) Warranty Deed dated May 31, 1989, and recorded under
Clerk's File No. 8922886 of the Real Property Records
of Xxxxxxxxxx County, Texas, and an Assignment of
Development Rights, Warranties, Service Contracts,
and Trade Name dated May 31, 1989, and recorded under
Clerk's File No. 8922887 of the Real Property Records
of Xxxxxxxxxx County, Texas.
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(e) Warranty Deed dated May 31, 1989, and recorded in
Book 300, Page 650 of the Recorder of Deeds of Taney
County, Missouri, and an Assignment of Development
Rights, Warranties, Service Contracts, and Trade Name
dated May 31, 1989, and recorded in Book 301, Page
331 on the Recorder of Deeds of Taney County,
Missouri;
(f) Warranty Deed dated May 31, 1989 and recorded in
Volume 679, Page 29 of the Real Property Records of
Comal County, Texas, and an Assignment of Development
Rights, Warranties, Service Contracts and Trade Name
dated May 31, 1989, and recorded in Volume 679, Page
36 of the Real Property Records of Comal County,
Texas.
1.35 "Maturity Date": two (2) years after the date which is the
first day of the month after the Closing Date (or if not a
Business Day, the first Business Day thereafter which may be
extended for an additional period of one year upon a request
to Lender accompanied by a payment of One Percent (1%) of the
difference between the Maximum Loan Amount and the then
principal balance of the Loan.
1.36 "Maximum Loan Amount": Forty Million United States Dollars
($40,000,000).
1.37 "Master Club": Master Club, a non-profit Texas corporation to
which all Time-Share Associations belong.
1.38 "Master Club Rights": the right to use the Resorts pursuant to
the conditions of the Endless Escape Disclosure Statement
given to all Purchasers upon purchasing a Fee Simple
Time-Share Interest.
1.39 "Non-Designated Receivables Collateral": that part of the
Receivables Collateral which is not Designated Receivables
Collateral.
1.40 "Note": the Promissory Note dated of even date herewith from
Borrower in favor of Lender in the original principal amount
of $40,000,000, as it may from time to time be renewed,
amended, restated, or replaced. The aforesaid $40,000,000 Note
is in the form of Exhibit D.
1.41 "Obligations": all obligations, agreement, duties, covenants
and conditions that Borrower is now or hereafter required to
Perform under the Documents.
1.42 "Other Lenders": FINOVA Capital Corporation, Marine Midland
Bank, N.A., Oxford Financial Corporation, Textron Financial
Corporation and Xxxxxx Financial, Inc.
1.43 "Performance" or "Perform": full, timely and faithful
performance.
1.44 "Permitted Encumbrances": the rights, restrictions,
reservations, encumbrances, easements and liens of record
which Lender has agreed to accept as set forth in Exhibit E.
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1.45 "Purchaser": a purchaser of a Time-Share Interest from a
Time-Share Developer.
1.46 "Purchaser Mortgage": the purchase money given to secure a Fee
Simple Time-Share Instrument.
1.47 "Real Property": the property described in Exhibit K.
1.48 "Receivables Assignment": a written assignment of specific
Designated Instruments and/or related Purchaser Mortgages and
their proceeds, delivered by Borrower to Lender in the form of
Exhibit A.
1.49 "Receivables Collateral": (a) the Instruments which are now or
hereafter assigned, endorsed or delivered to Lender pursuant
to this Agreement or against which an Advance has been made;
(b) all rights under all documents evidencing, securing or
otherwise pertaining to such Instruments, including, without
limitation, Purchaser Mortgages and purchase agreements; (c)
all files, books and records of Borrower pertaining to the
foregoing; and (d) the proceeds from the foregoing.
1.50 "Resolutions": a resolution of a corporation (including the
corporation as a general partner) certified as true and
correct by an authorized officer of such corporation, a
certificate signed by the manager of a limited liability
company and/or such other members whose approval is required,
or a partnership certificate signed by all of the general
partners of such partnership and such other partners whose
approval is required.
1.51 "Resorts": the projects legally described by the Master Deeds
and developed by Borrower; which include the Time-Share
Projects; Xxxxx Lake; Piney Shores Resort; Lake O' the Xxxxx;
The Villages; Hill Country Resort; Ozark Mountain Resort; and
Holiday Hills Resort.
1.52 "Inventory and Development Loan": the $5,400,000 loan
evidenced by the $5,400,000 Promissory Note from Borrower in
favor of Lender.
1.53 "Revolving Receivables Loan": the $40,000,000 loan evidenced by
the Promissory Note from Borrower in favor of Lender in the
form of composite Exhibit D.
1.54 "Security Documents": the Receivables Assignments, this
Agreement, and any and all other documents now or hereafter
executed by Borrower and securing Performance of the
Obligations, as they may be from time to time renewed,
amended, restated or replaced.
1.55 "Security Interest": a perfected, direct, first and (subject
only to the Permitted Encumbrances) exclusive security
interest in and charge upon the property intended to be
covered by it.
1.56 "Servicing Agent": Borrower serving in the capacity of
Servicing Agent pursuant to the Servicing Agreement.
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1.57 "Servicing Agent - Back Up": The back up Servicing Agent
acceptable to Lender to be hired by Borrower to track
Borrower's collections of the Receivables Collateral and to
substitute for Servicing Agent upon an Event of Default.
1.58 "Servicing Agreement": an agreement to be made among Lender
and Borrower for itself and acting as Servicing Agent, which
provides for Servicing Agent to perform for the benefit of
Lender accounting, reporting and other servicing functions
with respect to the Instruments constituting part of the
Receivables Collateral, as it may be from time to time
renewed, amended, restated or replaced.
1.59 "Subordination Agreement(s)": subordination agreement(s) made
and delivered to Lender pursuant to paragraph 6.11, as it may
be from time to time renewed, amended, restated or replaced.
1.60 "Term": the duration of this Agreement, commencing on the date
as of which this Agreement is entered into and ending when all
of the Obligations shall have been Performed.
1.61 "Third Party Consents": those consents which Lender requires
Borrower, and its Affiliates to obtain or which one or more of
them is contractually or legally obligated to obtain, from
others in connection with the transaction contemplated by the
Documents.
1.62 "Time-Share Associations" or sometimes "Associations": Ozark
Mountain Resort Club, a Missouri non-profit corporation,
Holiday Hills Resort Club, a Missouri non-profit corporation,
Hill Country Resort Club, a Texas non-profit unincorporated
organization, Piney Shores Resort Club, a Texas non-profit
unincorporated association, Xxxxx Lake Resort Club, a Texas
non-profit unincorporated association, The Villages Resort
Club, a Texas non-profit unincorporated association.
1.63 "Time-Share Declaration": the declaration recorded/or to be
recorded in the real estate records where each Time-Share
Project is located for the purpose of adding ownership of Fee
Simple Time-Share Interests to the Time-Share Program, as it
may be in effect from time to time.
1.64 "Time-Share Developer": Borrower, in its capacity selling
Time-Share Interests.
1.65 "Time-Share Interests": the Fee Simple Time-Share Interests.
1.66 "Time-Share Program": the program in which Purchasers have
purchased in Fee Simple Time-Share Interests; owners of
Time-Share Interests have the right to use and enjoy their
respective Time-Share Interests on a recurring basis; and
owners of Time-Share Interests share the expenses associated
with the operation and management of such program.
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1.67 "Time-Share Program Consumer Documents": the purchase
contract, Instrument, Purchaser Mortgage, credit application,
credit disclosures, rescission right notices, final,
subdivision public reports/ prospectuses/ public offering
statements, Time-Share Project exchange affiliation agreement,
Endless Escape Disclosure Document and other documents and
advertising materials used or to be used by a Time-Share
Developer in connection with the sale of Time-Share Interests.
1.68 "Time-Share Program Governing Documents": the Articles of
Organization of the Time-Share Associations, the rules and
regulations of the Time-Share Associations, the Time-Share
Program management contract between the Time-Share
Associations and a management company, any subsidy agreement
by which a Time-Share Developer is obligated to subsidize
shortfalls in the budget of the Time-Share Program in lieu of
paying assessments, and any exchange affiliation agreement, as
they may be from time to time in effect.
1.69 "Time-Share Projects": the part of the Resorts described in
Exhibit F and such other part of the Resorts as Lender may
from time to time hereafter approve in writing.
1.70 "Title Insurer (Purchaser Mortgage)": a title company which is
acceptable to Lender and issues a Title Policy (Purchaser
Mortgage).
1.71 "Title Opinion" (Purchaser Mortgage): an opinion that Lender's
interest in the Purchaser Mortgage securing the Fee Simple
Time Share Investment as a perfected, direct, first and
exclusive lien on the Time-Share Interest encumbered thereby,
subject only to the Permitted Encumbrances, issued by a law
firm and in form and substance acceptable to Lender.
1.72 "Title Policy (Purchaser Mortgage)": a policy of title
insurance in an amount equal to the principal balance of five
percent (5%) of the Instruments against which an Advance has
been made, submitted for such Advance insuring Lender's
interest in the Purchaser Mortgage securing such Instrument as
a perfected, direct, first and exclusive lien on the
Time-Share Interest encumbered thereby, subject only to the
Permitted Encumbrances, issued by a Title Insurer (Purchaser
Mortgage) and in form and substance acceptable to Lender.
1.73 "Unit": a dwelling unit in a Time-Share Project.
2. LOAN COMMITMENT; USE OF PROCEEDS
2.1 Lender hereby agrees, if Borrower has Performed all of the
Obligations then due, to make Advances to Borrower in amounts equal to (a) the
then Borrowing Base of the Eligible Instruments less (b) the then unpaid
principal balance of the Loan; provided, at no time shall the unpaid principal
balance of the Loan exceed the Maximum Loan Amount. Lender shall have no
obligation to make any Advance after the Borrowing Term has expired.
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2.2 The Loan is a revolving line of credit; however, all of the
Advances shall be viewed as a single loan. Borrower shall not be entitled to
obtain Advances after the expiration of the Borrowing Term unless Lender agrees
in writing with Borrower to make Advances thereafter on terms and conditions
satisfactory to Lender and such action if taken shall not be deemed a waiver
with respect to subsequent advances. This Agreement and Borrower's liability
for Performance of the Obligations shall continue, however, until the
Obligations have been completely satisfied or waived in writing by Lender.
2.3 Borrower will use the proceeds of all Advances only to fund
sales, marketing and working capital needs.
3. RECEIVABLES COLLATERAL SECURITY
3.1 To secure the Performance of all of the Obligations, Borrower
hereby grants to Lender a Security Interest in and assigns to Lender the
Collateral. Such Security Interest shall be absolute, continuing and applicable
to all initial and subsequent Advances and to all of the Obligations. All of the
Collateral shall secure repayment of the Loan and the Performance of the other
Obligations. Borrower will unconditionally deliver to Custodian as agent for
Lender pursuant to the Custodian Agreement, with full recourse, all Instruments
which are part of the Receivables Collateral. Lender is hereby appointed
Borrower's attorney-in-fact to take any and all actions in the name of Borrower
or on behalf of Borrower which are deemed necessary or appropriate by Lender
with respect to the collection and remittance of payments (including the
endorsement of payment items) received on account of the Receivables
Collateral.
3.2 If an Instrument which is part of the Designated Receivables
Collateral is not an Eligible Instrument upon assignment to Lender or
thereafter ceases to be an Eligible Instrument, then within thirty (30) days
after the earlier of (a) Borrower having obtained knowledge the Instrument is
not an Eligible Instrument or (b) the Instrument ceasing to qualify as an
Eligible Instrument, Borrower will either (x) pay to Lender an amount equal to
the Borrowing Base of the ineligible Instrument, together with interest, costs
and expenses attributable to it, or (y) replace such ineligible Instrument with
an Eligible Instrument or Eligible Instruments having a Borrowing Base not less
than the Borrowing Base (calculated immediately before its ineligibility) of
the ineligible Instrument being replaced. Simultaneously with such payment or
the delivery of the replacement Instrument to Lender, Borrower will deliver to
Lender all of the items (except for a "Request for Advance and Certification")
required to be delivered by Borrower to Lender pursuant to paragraph 4.1,
together with a "Borrower's Certificate" in form and substance identical to
Exhibit G. If neither an Event of Default nor Incipient Default has occurred
and is continuing, then within a reasonable time after the substitution of an
Eligible Instrument for an ineligible Instrument, Lender will reassign to
Borrower, without recourse or warranty of any kind, the ineligible Instrument.
Borrower will prepare the reassignment instrument, which shall be in form and
substance identical to Exhibit H and shall deliver it to Lender for execution.
Notwithstanding the foregoing to the contrary, Borrower shall not be required
to replace the Instrument described in 3.2(a) or (b) above if the aggregate
principal amount of the Loan outstanding does not exceed the Borrowing Base of
all Eligible Instruments.
3.3 Borrower will deliver or cause to be delivered to Lender, and
will maintain or cause to be maintained throughout the Term in full force and
effect in accordance with their terms, the
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Borrower Security Documents, the Subordination Agreement(s), and all other
security agreements required pursuant to the Documents.
4. ADVANCES
4.1 Lender's obligation to make the initial Advance shall be
subject to and conditioned upon the terms and conditions set forth in the
following subparagraphs and elsewhere in this Agreement being satisfied and
remaining satisfied during the Term.
(a) Borrower shall have delivered to Lender the
following Documents, duly executed and delivered by all parties
thereto, and in form and substance satisfactory to Lender:
(i) the Note;
(ii) a Receivables Assignment of the specific
Instruments, which must be Eligible
Instruments, against which the Advance is
requested;
(iii) the Subordination Agreement(s)
(iv) the Environmental Certificate;
(v) UCC financing statements for filing and/or
recording, as appropriate, where necessary to
perfect the Security Interest in the
Collateral subject to the UCC;
(vi) a favorable opinion which is from independent
counsel for Borrower, satisfactory to Lender
and is in form and substance satisfactory to
Lender,
(vii) the Lockbox Agreement;
(viii) the Servicing Agreement;
(ix) the Custodian Agreement;
(x) this Agreement;
(xi) the Title Opinion, including a guaranty to
update the Title Opinion after recording of
the Documents that are to be recorded; and
(xii) such other documents as Lender may reasonably
require.
(b) Borrower shall have delivered to Lender the following
items at least ten (10) Business Days prior to the date of the
Advance, or in the case of the items called
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for in item (xii) at least five (5) Business Days prior to the date of
the Advance, all of which shall be in form and substance satisfactory
to Lender:
(i) the Articles of Organization of Borrower and
for all purposes herein the Articles of
Organization of and its General Partner, and,
if applicable, their respective managers,
members and partners, to the extent any such
entity is not a natural person;
(ii) the Resolutions of Borrower, and, if
applicable, their respective managers,
members and general partners, to the extent
any such entity is not a natural person;
(iii) evidence that all taxes and assessments on
the Time-Share Projects have been paid;
(iv) a title commitment or preliminary title
report for the issuance of the Title Policy
(Purchaser Mortgage), together with copies of
all documents referred to therein and a
pro-forma copy of such title policy;
(v) the approved subdivision plat;
(vi) a copy of the registrations/consents to sell,
the final subdivision public reports/public
offering statements and/or prospectuses and
approvals thereof required to be issued by or
used in the state where the Time-Share
Projects is located and other jurisdictions
where Time-Share Interests have been offered
for sale or sold;
(vii) if the Time-Share Project has not been
registered under the Interstate Land Sales
Full Disclosure Act ("Act") and Lender
requests such an opinion, a copy of an
advisory opinion issued by the federal Office
of Interstate Land Sales Registration that
the Project does not fall within the purview
of the Act. Lender may in its sole
discretion, accept the opinion of Borrower's
counsel on the applicability of such act.
(viii) a copy of the form of the Time-Share Program
Consumer Documents and the Time-Share Program
Governing Documents which have been or are
being used by the Time-Share Developers,
including, without limitation, the exchange
affiliation agreement with RCI and the
Management Agreements;
(ix) the Insurance Policies;
(x) a structural inspection of the Time-Share
Projects;
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(xi) without implying Lender's consent to any such
lien, agreements from the holders of liens on
the Time-Share Project and any amenities
available to Purchasers as described in the
Time-Share Documents that they will not
disturb the rights of owners of Time-Share
Interests to use and enjoy such Time-Share
Interests so long as they are not in default
of their obligations under their Instruments
and the Time-Share Program Governing
Documents;
(xii) the specific Instruments against which the
Advance is requested, items property endorsed
and the other items described in Exhibit I,
which for purposes of efficiently handling
requests for Advances, contains some of the
items also set forth in Sections 4.1 through
4.4 herein; and
(xiii) such other items as Lender requests which are
reasonably necessary to evaluate the request
for the Advance and the satisfaction of the
conditions precedent to the Advance.
(c) Lender shall have received the following in form and
substance satisfactory to Lender:
(i) lien, litigation and judgment searches for
Borrower, and Master Club conducted in such
jurisdictions as Lender deems appropriate.
(d) No material adverse change shall have occurred-in the
Time-Share Project or in Borrower's or Master Club's business or
financial condition since the date of the latest financial and
operating statements given to Lender by or on behalf of Borrower and
Master Club. A suspension of sales or a liability incurred outside the
ordinary course of business in the amount of $100,000 or more shall be
deemed material and adverse.
(e) There shall have been no change in the warranties and
representations made in the Documents by Borrower, for the Performance
of any of the Obligations.
(f) Neither an Event of Default nor Incipient Default
shall have occurred and be continuing.
(g) The interest rate applicable to the Advance (before
giving effect to any savings clause) will not exceed the maximum rate
permitted by the Applicable Usury Law.
(h) Borrower shall have paid to Lender (or its designee),
or authorized such payment be made out of the Advance, the Structuring
Advisory Fee, the Lenders Attorney's Fee, the Custodian Fee, the
Lockbox Agent Fee, and all other fees required to be paid at the time
of the Advance.
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4.2 Advances shall be requested in writing (in the form of Exhibit
J) by the Chief Executive Officer or principal financial officer of Borrower
and shall be made (i) no more frequently than three times each month nor more
frequently than one (1) time in any week; or (ii) in amounts less than
$500,000.
4.3 Advances may be disbursed by checks, wire transfers or drafts
payable to Borrower; or if requested by Borrower and approved in writing by
Lender, to others, either severally or jointly with Borrower, for the credit or
benefit of Borrower. Lender may, at its option, withhold from any Advance any
sum due it (including costs and expenses) under the terms of the Documents.
4.4 Although Lender shall have no obligation to make an Advance
unless and until all of the conditions precedent to the Advance have been
satisfied, Lender may, at its discretion, make Advances prior to that time
without waiving or releasing any of the Obligations.
4.5 After the initial Advance, the obligation of Lender to make a
subsequent Advance shall be subject to the satisfaction of the conditions
precedent set forth on Exhibit I.
5. NOTE, MAINTENANCE OF BORROWING BASE: PAYMENTS:
SERVICING AND COLLECTION
5.1 The Loan shall be evidenced by the Note and shall be repaid in
immediately available funds according to the terms of the Note.
5.2 Subject to Borrower's rights under paragraph 3.2 to provide
replacement Eligible Instruments, if for any reason the aggregate principal
amount of the Loan outstanding at any time shall exceed the then Borrowing Base
of all Eligible Instruments, Borrower, without notice or demand, will
immediately make to Lender a principal payment in an amount equal to such
excess plus accrued and unpaid interest on such principal payment.
5.3 (a) Lockbox Agent shall collect payment on the
Instruments constituting part of the Receivables Collateral and, remit
collected payments to Lender on the last Business Day of each and
every month after the date of first Advance, according to the terms of
the Lockbox Agreement, or sooner if requested by Lender. Payments
shall not be deemed received by Lender until Lender actually receives
such payments from Lockbox Agent.
(b) Servicing Agent shall furnish to Lender at Borrower's
sole cost and expense, no later than the 1Oth day of each month
commencing with the first full calendar month following the date of
this Agreement, separate reports for the Designated and Non-Designated
Receivables Collateral, substantially in a format satisfactory to
Lender, which: (i) shows as of the end of the prior month with respect
to each Instrument which constitutes part of the Receivables
Collateral (A) all payments received allocated between principal,
interest, late charges and taxes, (B) the opening and closing
balances, (C) present value, (D) average consumer interest rate, and
(E) extensions, refinances, prepayments, and other similar
adjustments; (F) the average remaining term; (G) the average
downpayment collected; and (H) the percentage of payments made by U.S.
obligors and the percentage of payments made by Canadian obligors; and
(ii) indicates
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delinquencies of 30, 60 and 90 days and in excess of 90 days. On the
basis of such reports, Lender will compute the amount, if any, which
was due and payable by Borrower on the last Business Day of the
preceding month and will notify Borrower of any amount due. If such
reports are not timely received, Lender may estimate the amount which
was due and payable. Borrower will pay upon demand the amount
determined by Lender to be due and payable. If payment is made on the
basis of Lender's estimate and thereafter reports required by this
paragraph are received by Lender, the estimated payment amount shall be
adjusted by an additional payment or a refund to the correct amount, as
the reports may indicate; such additional amount should be paid by
Borrower upon demand and such refund to be made by Lender within 5
Business Days after receipt of written request therefor by Borrower. At
the end of each calendar quarter, Borrower will deliver or cause the
Servicing Agent to deliver to Lender a current list of the names,
addresses and phone numbers of the obligors on each of the Instruments
constituting part of the Receivables Collateral. Borrower will also
deliver or cause Servicing Agent to deliver to Lender, promptly after
receipt of a written request for them, such other reports with respect
to Instruments constituting part of the Receivables Collateral as
Lender may from time to time require.
(c) Lender, subject to any restriction contained in the
Lockbox Agreement, Custodian Agreement or the Servicing Agreement, as
the case may be, may at any time and from time to time subject to
provisions of subsection (d) immediately below, substitute or require
Borrower to substitute a successor or successors to any Agent acting
under the Lockbox Agreement, Custodian Agreement or the Servicing
Agreement.
(d) Borrower agrees to hire the Servicing Agent - Back Up
at a cost not to exceed $20,000 per year. Upon the occurrence of an
Event of Default, Lender may replace the Servicing Agent, with the
Servicing Agent - Back Up who shall then receive compensation at a
market rate for a Prime Servicing Agent.
5.4 Subject to Lender's rights under Article VII, all proceeds
from the Receivables Collateral (except payments which are identified by
Purchasers as tax and insurance impounds/payments or maintenance and other
assessment payments and are required to be so treated by Borrower) and the
other security shall be applied as follows: first to the payment of all late
charges, costs, fees and expenses required by the Documents to be paid by
Borrower; second to accrued and unpaid interest due on the Note; third to the
unpaid principal balance of the Note; and then to the other Obligations in such
order and manner as Lender may determine.
5.5 Whether or not the proceeds from the Receivables Collateral
shall be sufficient for that purpose, Borrower will pay when due all payments
required to be made pursuant to any of the Documents, Borrower's Obligation to
make such payments being absolute and unconditional.
6. BORROWER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 (a) Borrower is, and will remain at all times, duly
organized, validly existing and in good standing under the laws of
Texas and in each jurisdiction where the Time-Share Projects are
located and in which it is selling Time-Share Interests or where the
location or nature of its properties or its business makes such
qualification necessary.
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Borrower has full authority to Perform the Obligations and to carry on
its business and own its property.
(b) Borrower has full power and authority to grant the
Security Interest in the Receivables Collateral and to execute and
deliver the Documents and to Perform the Obligations. All action
necessary and required by the Articles of Organization of Borrower and
all applicable laws for the obtaining of the Loan and for the
execution and delivery of the Documents executed and delivered in
connection with the Loan has been duly and effectively taken. The
Documents are and shall be legal, valid, binding and enforceable
against Borrower; and do not violate the Applicable Usury Law or
constitute a default or result in the imposition of a lien under the
terms or provisions of any agreement to which Borrower is a party. No
consent of any governmental agency or any other person not a party to
this Agreement is or will be required as a condition to the execution,
delivery or enforceability of the Documents.
6.2 There is no action, litigation or other proceeding pending or,
to the knowledge of Borrower, threatened before any arbitration tribunal,
court, governmental agency or administrative body involving Borrower (including
Master Club), its property, the Time-Share Projects or Resorts which might
materially adversely affect the Collateral, the Time-Share Project, the
business or financial condition of Borrower or the ability of Borrower to
perform the Obligations.
6.3 (a) Only Borrower has sold or offered Time-Share Interests
for sale; Time-Share Interests have been offered for sale only in the
state in which the Time-Share Projects are located, and all sales have
been made at the Time-Share Projects. Before Borrower offers
Time-Share Interests for sale in any jurisdiction or sells Time-Share
Interests other than at the Time-Share Projects, Borrower will
promptly notify Lender and provide Lender with evidence that it has
complied with all laws of the jurisdiction governing its proposed
conduct.
(b) Borrower has complied, and Borrower will comply, with
all applicable laws and regulations, including, without limitation,
all laws and regulations of the state in which the Time-Share Projects
are located and all other governmental jurisdictions in which the
Time-Share Projects are located or in which Time-Share Interests have
been or are being sold or offered for sale if required by such
jurisdiction.
(c) Borrower has not sold or offered any Time-Share
Interests for sale as an investment. Neither the sale nor the offering
of any Time-Share Interest would constitute the sale or the offering
of a security for sale under any applicable law.
(d) Neither the time-share use nor other transient use
and occupancy of Units will violate or constitute a non-conforming use
under any private covenant or restriction or any zoning, use or
similar law, ordinance or regulation affecting the use or occupancy of
any Time-Share Project.
6.4 (a) Each Instrument which is assigned to Lender pursuant
to this Agreement and against which an Advance is requested or which
is assigned in satisfaction of Borrower's obligations under paragraph
3.2 shall be an Eligible Instrument at the time of
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assignment. Borrower and Master Club have performed all their
obligations to Purchasers, and there are no executory obligations to
Purchasers to be Performed by Borrower or Master Club other than
obligations which by their nature or by agreement are to be executed
in the future. Borrower further warrants and guarantees the
enforceability of the Receivables Collateral.
(b) Without the prior written consent of Lender, Borrower
will not cancel or materially modify, or consent to or acquiesce in
any material modification (including, without limitation, any change
in the interest rate or the amount, frequency or number of payments)
to, or solicit the prepayment of, any Instrument which constitutes
part of the Receivables Collateral; waive the timely performance of
the obligations of the Purchaser under any such Instrument or its
security; or release the security for any such Instrument. Borrower
will not pay or advance directly or indirectly for the account of any
Purchaser any sum requested to be deposited or owing by the Purchaser
under any Instrument which constitutes part of the Receivables
Collateral.
(c) Borrower at all times will fulfill and will cause its
Affiliates, agents and independent contractors at all times to fulfill
all obligations to Purchasers, except where failure to do so would not
materially or adversely affect the Collateral, the Time-Share
Projects, the business or financial condition of Borrower, or the
ability of Borrower to Perform the Obligations. Borrower will perform
and will cause its Affiliates to perform all of their respective
obligations under the Time-Share Program Governing Documents.
(d) True and complete copies of the Time-Share Program
Consumer Documents and Time-Share Program Governing Documents which
have been and are being used in connection with the Time-Share Project
and the sale or offering for sale of Time-Share Interests have been
delivered to Lender. Borrower, without the prior written consent of
Lender, will not cancel or materially modify or permit or acquiesce in
the cancellation or material modification of any such document except
as required by law; and will not permit or suffer any of its
Affiliates to do so.
(e) Each owner of a Time-Share Interest is a member of
the appropriate Time-Share Association, and all the Time-Share
Associations have authority to levy annual assessments to cover the
costs of maintaining and operating the respective Time-Share Projects.
To Borrower's knowledge, Master Club and each Association is solvent;
currently levied assessments are adequate to cover such costs and to
establish and maintain a reasonable reserve for capital improvements
and such reserves are established pursuant to applicable law and are
not deficient to perform the purposes for which they are intended; and
there are no events which could give rise to a material increase in
such costs. Borrower will use its best efforts to: (i) cause each
Association to (A) discharge its obligations under the Time-Share
Program Governing Documents and (B) maintain the reserve described
above.
(f) Except as otherwise permitted and disclosed by the
Time-Share Program Governing Documents: (i) the owners of the
Time-Share Interest in the Time-Share Project have a right to use all
the common areas in the Time-Share Project and Borrower owns in fee
simple other amenities which have been promised or represented as
being available to Purchasers, free and clear of liens and security
interests (or subordinated to
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the interests of Purchasers) except for the Permitted Encumbrances;
(ii) Master Club owns all furnishings within the Units free and clear
of all liens and security interests; and (iii) all access roads and
utilities and off-site improvements necessary to the use of the
Time-Share Project have been dedicated to and/or accepted by the
responsible governmental authority or utility company or are held in
fee simple by Borrower with all Purchasers enjoying a recorded right
to use such access roads, utilities and the above-described amenities
Borrower will maintain or cause to be maintained in good condition and
repair all amenities and common areas which have been promised or
represented as being available to Purchasers and all roads and
off-site improvements which are not the responsibility of the
Associations to maintain and repair and have not been dedicated to or
accepted by the responsible governmental authority or utility company;
provided, however, that if any such property is not owned by Borrower
or any of its Affiliates, Borrower will use its best efforts to cause
the owner or other responsible third party to maintain and repair such
property. Borrower will maintain a reasonable reserve to assure
compliance with the terms of the foregoing sentence.
6.5 Borrower will undertake the diligent and timely collection of
amounts delinquent under each Instrument which constitutes part of the
Receivables Collateral and will bear the entire expense of such collection.
Lender shall have no obligation to undertake any action to collect under any
Instrument.
6.6 Lender may notify Purchasers of the existence of Lender's
interest as assignee in the Receivables Collateral and request from Purchasers
any information relating to the Receivables Collateral. Borrower will deliver
such notice under its letterhead if requested.
6.7 Borrower without the prior written consent of Lender, will
not: (a) sell, convey, pledge, hypothecate, encumber or otherwise transfer any
of the Collateral; (b) permit or suffer to exist any liens, security interests
or other encumbrances on any of the Collateral, except for the Permitted
Encumbrances and liens and security interests expressly granted to Lender; (c)
sell, lease, transfer or dispose of all or substantially all of its assets to
another entity; or (d) permit or suffer to exist any transfer of the ownership
interests or control of Borrower; except that Xxxxxx Xxxx, the controlling
shareholder of the General Partner of Borrower, may sell a portion of his
shares of Borrower provided he maintains a number of shares equal to at least
51% of the issued and outstanding shares of Borrower except that control may
change if it occurs through an initial public offering or private placement
sale of Borrower's common stock; (e) Xxxxxx Xxxx terminates his employment with
Borrower, is deceased or incapacitated; or (f) change in any material,
deleterious way, the program by which the Time-Share Interests are marketed. A
default under Section 6.7(d) or (e) shall allow Lender as its exclusive remedy,
to refrain from making any additional Advances. In the event Lender makes such
Advances after the default under Section 6.7(d) or (e), it shall have the right
at any time to discontinue further Advances.
6.8 Borrower will pay the cost of and will maintain and deliver to
Lender evidence of insurance policies required by Lender making Lender an
additional insured and written by insurers and in amounts and on forms
satisfactory to Lender.
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6.9 (a) The Documents and all certificates, financial statements
and written materials furnished to Lender by or on behalf of Borrower
in connection with the Loan do not contain any untrue statement of a
material fact or omit to state a fact which materially adversely
affects or in the future may materially adversely affect the
Collateral, the Time-Share Project, the business or financial
condition of Borrower, or the ability of Borrower to Perform the
Obligations.
(b) Lender's examination, inspection, or receipt of
information pertaining to the Collateral or the Time-Share Project and
its proposed operation shall not in any way be deemed to reduce the
full scope and protection of the warranties, representations and
Obligations contained in this Agreement.
6.10 (a) On or before the 10th day of each month, Borrower will
cause to be furnished to Lender the reports required pursuant to
paragraph 5.4(b).
(b) Borrower will furnish or cause to be furnished to
Lender within 120 days after each fiscal year of the subject, a copy
of the current annual financial statements of Borrower and, subject to
the best efforts of Borrower, Master Club and the Associations; and
shall furnish or cause to be furnished to Lender within 45 days after
each interim quarterly fiscal period of Borrower, a copy of the
current financial statements for the period commencing with the first
day of the fiscal year and concluding with such quarter end. Such
financial statements shall contain a balance sheet as of the end of
the relevant fiscal period and statements of income and of cash flow
for such fiscal period (together, in each case, with the comparable
figures for the corresponding period of the previous fiscal year), all
in reasonable detail. All financial statements shall be prepared in
accordance with generally accepted accounting principles, consistently
applied. All financial statements required pursuant to this paragraph
shall be certified by the chief financial officer of the subject of
such statements. Annual statements shall be audited and certified by a
recognized firm of certified public accountants reasonably
satisfactory to Lender. Together with such financial statements,
Borrower will deliver to Lender: (a) a certificate signed by the chief
financial officer of Borrower stating that there exists neither an
Event of Default nor an Incipient Default or, if any such Event of
Default or Incipient Default exists, specifying the nature and period
of its existence and what action Borrower proposes to take with
respect to it; and (b) certificates signed by the chief financial
officer of Borrower which shall state specifically that Borrower, and
to the best of his knowledge, Master Club, is in full compliance with
paragraphs 6.16-6.17, inclusive, and set forth in reasonable detail
the calculations upon which such certification is based.
(c) Borrower will deliver to Lender from time to time, as
available, and promptly upon amendment or effective date: current
price lists, sales literature, registrations/consents to sell, and
final subdivisions public reports/public offering
statements/prospectuses. Borrower will deliver to Lender any material
modifications which it or, to its knowledge, any other person having
the power to do so proposes be made to the Time-Share Program Consumer
Documents or the Time-Share Program Governing Documents last delivered
to Lender, and will deliver all such modifications to Lender promptly
after they are made or adopted.
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(d) Borrower will at its expense permit Lender and its
representatives at all reasonable times to inspect the Time-Share
Projects and to inspect, audit and copy its records and records of
Master Club in Borrower's possession.
(e) Borrower will submit to Lender annually, within 10
days after each is available, proposed annual maintenance and
operating budgets of Master Club, certified to be adequate Borrower
and a statement of the annual assessment to be levied upon the members
of such Associations; and will use its best efforts to cause to be
made available to Lender for inspection, auditing and copying, upon
Lender's request, the books and records of each Associations.
(f) Borrower will deliver to Lender such further
information as Lender may from time to time reasonably request.
6.11 Borrower will cause any and all indebtedness owing by it, to
its shareholders, directors and officers, or their relatives and Affiliates of
Borrower or the foregoing and all liens, security interests, and other charges
in the assets of Borrower to be fully subordinated in writing in all aspects to
the Obligations and Lender's claims now held or hereafter acquired to the
assets of Borrower, including, without limitation, the Collateral; provided,
however, that if neither an Event of Default nor Incipient Default is
outstanding, Borrower may make regularly scheduled payments on any such
indebtedness and other normal and customary payments for services rendered.
Lender may require any such creditor to execute a written subordination
agreement satisfactory in form and substance to Lender, which shall include,
without limitation, provisions precluding exercise of remedies by the creditor
against the assets of Borrower, until all Obligations have been satisfied in
full.
6.12 Borrower is not in default of any payment on account-of
indebtedness for borrowed money or of any repurchase obligations in connection
with a receivables purchase financing, or in violation of or in default under
any material term in any agreement, order, decree or judgment of any court,
arbitration or governmental authority to which it is a party or by which it is
bound.
6.13 Borrower has filed all tax returns and paid all taxes,
assessments, levies and penalties, if any, required to be filed by it or paid
by it to any governmental or quasi-governmental authority or subdivision,
including real estate taxes and assessments relating to the Time-Share Projects
or the Collateral. Borrower will use its best efforts to provide to Lender not
more than 30 days after such taxes and assessments become due evidence that all
taxes and assessments on the Units and Time-Share Projects common areas and
related amenities have been paid in full.
6.14 (a) Borrower has paid to Lender a deposit of $35,000, and
Borrower will pay or cause to be paid to Lender an additional $365,000
Structuring Advisory Fee at the time of the initial Advance. Borrower
acknowledges that the deposit and the Structuring Advisory Fee has
been earned and are non-refundable. Borrower will pay on demand any
and all costs and expenses incurred by Lender in connection with the
initiation, documentation and closing of the Loan, the making of
Advances, the protection of the Collateral, or the enforcement of the
obligations against Borrower, including, without limitation, all
attorneys' and other professionals'
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fees and costs, consumer credit reports, revenue, documentary stamp
and intangible taxes and any other taxes imposed on the Documents.
(b) Borrower shall, at the time of the initial Advance of
the Loan, pay or cause to be paid all of Lender's attorneys fees in
the amount of $25,000 and costs for services rendered in connection
with this Loan and will pay such fees and costs as are set forth in
the Inventory and Development Loan.
(c) Borrower will pay Custodian a one time Custodial Fee
in the amount of $5.00, with potential increases to a maximum of
$9.00, for each new Eligible Instrument held by Custodian as
designated agent of Lender exclusive of Eligible Instruments assigned
as replacements for Instruments that cease to be Eligible Instruments
and recurring fees that are set forth in the Custodian Agreement.
6.15 Borrower will INDEMNIFY, PROTECT, HOLD HARMLESS, AND DEFEND
Lender, its successors, assigns and shareholders (including corporate
shareholders), and the directors, officers, employees, agents and servants of
the foregoing, for, from and against any and all losses, costs, expenses
(including, without limitation, any attorneys' fees and costs), demands,
claims, suits, proceedings (whether civil or criminal), orders, judgments,
penalties, fines and other sanctions arising from or brought in connection with
(a) the Time-Share Projects, the Collateral, Lender's status by virtue of the
Assignments, creation of Security Interests, the terms of the Documents or the
transactions related thereto, or any act or omission of Borrower or any Agent,
or their respective employees, contractors or agents, whether actual or
alleged, and (b) any and all brokers' commissions or finders' fees or other
costs of similar type by any party in connection with the Loan. On written
request by a person or other entity covered by the above agreement of
indemnity, Borrower will undertake, at its own cost and expense, on behalf of
such indemnitee, using counsel satisfactory to the indemnitee, the defense of
any legal action or proceeding to which such person or entity shall be a party.
At Lender's option, Lender may at Borrower's expense prosecute or defend any
action involving the priority, validity or enforceability of the Security
Interests in the Collateral.
6.16 Borrower will not make, and will not permit or suffer any
Affiliate to make, any distribution (inclusive of dividends, stock repurchases
and redemptions, the repayment of loans from, and the making of loans to or
investments in the distributees) to any-of their respective Affiliates unless
at the time of the distribution and after giving effect thereto, there exists
neither an Event of Default nor an Incipient Default.
6.17 Borrower will maintain an aggregate minimum tangible net worth
of not less than $17,500,000.
6.18 Borrower will execute or cause to be executed all documents
and do or cause to be done all acts necessary for Lender to perfect and to
continue the perfection of the Security Interest of Lender in the Collateral or
otherwise to effect the intent and purposes of the Documents.
6.19 The representations, warranties and covenants contained in
this Article VI are in addition to, and not in derogation of, the
representations, warranties and covenants contained
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elsewhere in the Documents and shall be deemed to be made and reaffirmed prior
to the making of each Advance.
6.21 Borrower covenants and warrants that none of the Other Lenders
have a security interest in (i) the proceeds derived from the Management
Agreements, or (ii) from any furniture or furnishings, (iii) the assets of
Master Club, or (iv) claims against the FDIC or other parties.
7. DEFAULT
7.1 The occurrence of any of the following events or conditions
shall constitute an Event of Default under the Documents:
(a) failure of Lender to receive from Borrower within 5
days of the date written notice has been sent to Borrower after the
due date (i) any amount payable under the Note or (ii) any other
payment due under the Documents, except for the Note payment due at
the Maturity Date for which no grace period is allowed;
(b) any representation or warranty of a person other than
Lender contained in the Documents or in any certificate furnished to
Lender under the Documents by or on behalf of Borrower proves to be,
in any material respect, false or misleading as of the date deemed
made;
(c) a default in the Performance of the Obligations set
forth in paragraphs 3.2, 6.7, 6.8, 6.11, 6.16, 6.17, 6.18, 6.19, or
9.2;
(d) a default in the Performance of the Obligations or a
violation of any term, covenant or provision of the Documents (other
than a default or violation referred to elsewhere in this paragraph
7.1) which continues unremedied (i) for a period of 5 Days after
notice of such default or violation to Borrower in the case of a
default under or violation of paragraph 6.7(b) or any other default
or violation which can be cured by the payment of money alone or (ii)
in the case of any other default or violation, for a period of twenty
(20) Business Days after notice to Borrower of such default or
violation, plus only if such default or violation cannot be cured by
Borrower proceeding diligently and Borrower has been diligent in
attempting to effect cure, such additional period not to exceed twenty
(20) Business Days as may be required by Borrower proceeding
diligently to effect cure;
(e) an "Event of Default", as defined elsewhere in any of
the Documents or any of the Other Loan Documents;
(f) any final, non-appealable judgment or decree for
money damages or for a fine or penalty against Borrower which is not
paid and discharged or stayed within 30 days thereafter and when
aggregated with all other judgments or decree(s) that have remained
unpaid and undischarged or stayed for such period is in excess of
$100,000;
(g) any person holding a lien or security interest in the
Collateral or a lien (other than a lien created by Purchaser solely
with respect to its Time-Share Interest and without implying Lender's
consent to the creation or existence of any such lien or security
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interest) on any part of the Time-Share Projects or its related
amenities institutes foreclosure, receivership or other proceedings
for the enforcement of any remedy available to it on account of such
lien or security interest;
(h) Borrower shall (i) generally not be paying its debts
as they become due, (ii) file or consent by answer or otherwise to the
filing against it of a petition for relief or reorganization,
arrangement or liquidation or any other petition in bankruptcy or
insolvency or the appointment of a custodian under the laws of any
jurisdiction, (iii) make an assignment for the benefit of its
creditors, (iv) consent to the appointment of a custodian, receiver,
trustee or other officer with similar powers for itself or any
substantial part of its property, (v) be adjudicated insolvent, (vi)
dissolve; commence to wind-up its affairs or (vii) take any action for
purposes of the foregoing; or a petition for relief or reorganization,
arrangement or liquidation or any other petition in bankruptcy or
insolvency or the appointment of a custodian under the laws of any
jurisdiction is filed against it or a custodian is appointed for
Borrower, the Collateral or any material party of its properties and
such proceeding is not dismissed and appointment vacated within 60
days thereafter;
(i) a material adverse change in any of the Time-Share
Projects or in the business or financial condition of Borrower or in
the Collateral, which change is not otherwise enumerated in this
paragraph 7.1 as an Event of Default as the result of which Lender in
good xxxxx xxxxx the prospect of Performance of the Obligations
impaired or its Collateral imperiled. A change shall not be deemed
material and adverse until it results in cumulative damages of at
least $100,000 or is not subject to quantification, in Lender's
reasonable opinion;
(j) failure of Lender to receive from Borrower, within 20
days of the date Borrower knows or should have known of such change,
notice of any material change in any representations or warranties in
the Documents or otherwise made in connection with the Loan; or
(k) an order or decree has been entered by any court or
regulatory agency, local, state or federal, of competent jurisdiction
enjoining the intended use of the Time-Share Projects as time-share
resorts and such order or decree is not vacated within sixty (60) days
after Borrower has obtained knowledge thereof.
(l) If a default or Event of Default occurs under any
document or instrument evidencing, securing or executed in connection
with the Inventory and Development Loan and any such default or Event
of Default is not cured within the applicable grace period (if any)
provided therein.
(m) any default by Borrower under any other agreement
evidencing, guaranteeing, or securing borrowed money or a receivables
purchase financing involving an obligation in excess of $100,000 to
make a payment of principal or interest or to repurchase receivables
or any other material default permitting the acceleration of the
repayment of the borrowed money or the repurchase of receivables,
which accelerated repayment or repurchase obligations are in excess of
$100,000 in the aggregate;
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provided that Lender's sole remedy for this paragraph 7.1(l) default
shall be to withhold any subsequent Advances requested by Borrower.
7.2 At any time after an Event of Default has occurred and while
it is continuing, Lender may but without obligation, in addition to the rights
and powers granted elsewhere in the Documents and not in limitation thereof, do
any one or more of the following:
(a) cease to make further Advances;
(b) declare the Note, and all other sums owing by
Borrower to Lender in connection with the Documents, immediately due
and payable without notice, presentment, demand or protest, which are
hereby waived by Borrower;
(c) receive and retain the Borrower's Receivables
Collateral Proceeds;
(d) with respect to the Receivables Collateral, (i)
institute collection, foreclosure and other enforcement actions
against Purchasers and other persons obligated on the Receivables
Collateral, (ii) enter into modification agreements and make extension
agreements with respect to payments and other performances, (iii)
release persons liable for performance, (iv) settle and compromise
disputes with respect to payments and performances claimed due, all
without notice to Borrower, without being called to account for such
actions by Borrower and without relieving Borrower from Performance of
the Obligations, and (v) receive, collect, open and read all mail of
Borrower for the purpose of obtaining all items pertaining to the
Receivables Collateral; and
(e) proceed to protect and enforce its rights and
remedies under the Documents and the Other Loan Documents, to
foreclose or otherwise realize upon the collateral and/or to exercise
any other rights and remedies available to it at law, in equity or by
statute.
7.3 Notwithstanding anything in the Documents to the contrary,
while an Event of Default exists, any cash received and retained by Lender in
connection with the Collateral may be applied to payment of the Obligations in
the manner provided in paragraph 7.5.
7.4 (a) Lender shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code of the States of New
York, Texas and Missouri and all other rights and remedies accorded to
a Secured Party at equity or law. Any notice of sale or other
disposition of the Collateral given not less than 10 Business Days
prior to such proposed action in connection with the exercise of
Lenders remedies shall constitute reasonable and fair notice of such
action. Lender may postpone or adjourn any such sale from time to time
by announcement at the time and place of sale stated on the notice of
sale or by announcement of any adjourned sale, without being required
to give a further notice of sale. Any such sale may be for cash or,
unless prohibited by applicable law, upon such credit or installment
as Lender may determine. Borrower shall be credited with the net
proceeds of such sale only when such proceeds are actually received by
Lender in good current funds. Despite the consummation of any such
sale, Borrower shall remain liable for any deficiency on the
Obligations which remains
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outstanding following such sale. All net proceeds recovered pursuant
to a sale shall be applied in accordance with the provisions of
paragraph 7.5.
(b) Lender may, in the name of Borrower, or in its own
name, make and execute all conveyances, assignments and transfers of
the Collateral sold in connection with the exercise of Lender's
remedies; and for this purpose Lender is hereby appointed
attorney-in-fact for Borrower.
(c) Upon request of Lender when an Event of Default
exists, Borrower shall assemble the Collateral not already in Lender's
possession and make it available to Lender at a time and place
designated by Lender.
7.5 The proceeds realized from any sale of all or any part of the
Collateral made in connection with the exercise-of Lender's remedies shall be
applied in the following order of priorities; first, to the payment of all
costs and expenses of such sale, including, without reasonable compensation to
Lender and its agents, attorneys fees, and all other expenses, liabilities and
advances incurred or made by Lender, its agents and attorneys in connection
with such sale, and any other unreimbursed expenses for which Lender may be
reimbursed pursuant to the Documents; second, to the payment of the
Obligations, in such order and manner as Lender shall determine, with no
amounts applied to payment of principal until all interest has been paid; and
third, to the payment to Borrower, its successors or assigns, or to whomsoever
may be lawfully entitled to receive the same, or as a court of competent
jurisdiction may direct, of any surplus then remaining from such proceeds.
7.6 Lender may, at its option, and without any obligation to do so,
pay, perform and discharge any and all liabilities agreed to be paid or
performed in the Documents by Borrower, any Guarantor or any surety for the
Performance of the Obligations if the person obligated fails to do so. For such
purposes Lender may use the proceeds of the Collateral. All amounts expended by
Lender in so doing or in exercising its remedies under the Documents following
an Event of Default shall become part of the Obligations, shall be immediately
due and payable by Borrower to Lender upon demand, and shall bear interest at
the Default Rate from the dates of such expenditures until paid.
7.7 No remedy in any Document conferred on or reserved to Lender
is intended to be exclusive of any other remedy or remedies, but each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given under any Document or now or hereafter existing at law or in equity. No
delay or omission to exercise any right or power shall be construed to be a
waiver of or acquiescence to any default or a waiver of any right or power; and
every such right and power may be exercised from time to time and as often as
may be deemed expedient
7.8 Borrower, for itself and for all who may claim through or under
it, hereby expressly waives and releases all right to have the Collateral or
any part thereof, marshalled on any foreclosure sale or other enforcement of
Lender's rights and remedies.
7.9 For the purpose of exercising its rights and remedies under
Paragraph 7.2(d) and 7.6, Lender may do so in the name of Borrower or its name
and is hereby appointed as Borrower's attorney-in-fact to take any and all
actions in the name of Borrower and/or on behalf
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of Borrower-as Lender may deem necessary or appropriate in the accomplishment
of such purposes.
8. CONSTRUCTION AND GENERAL TERMS
8.1 All moneys payable under the Documents shall be paid to Lender
at its address set forth on the signature page of this Agreement in lawful
monies of the United States of America, unless otherwise designated in the
Documents or by Lender by notice.
8.2 The Documents exclusively and completely state the rights and
obligations of Lender and Borrower with respect to the Loan. No modification,
variation, termination, discharge, abandonment or waiver of any of the terms or
conditions of the Documents shall be valid unless in writing and signed by duly
authorized representatives of the party sought to be bound by such action. The
Documents supersede any and all prior representations, warranties and/or
inducements, written or oral, heretofore made by Lender concerning this
transaction, including any commitment for financing.
8.3 The powers and agency granted to Lender by Borrower in the
Documents are coupled with an interest and are irrevocable and are granted as
cumulative to Lender's other remedies for collection and enforcement of the
Obligations.
8.4 Any Document may be executed simultaneously in any number of
identical copies each of which shall constitute an original for all purposes.
8.5 Except as otherwise expressly provided in the Document, any
notice required or permitted to be given under any Document by Lender or
Borrower to the other shall be in writing and shall be (a) personally
delivered, (b) transmitted postage prepaid by certified or registered mail, (c)
sent by overnight express carrier, or (d) sent by telecopy, to Lender or such
Borrower at its address and/or telecopy number as set forth on the signature
page of this Agreement, or at such other address and/or telecopy number as
either party may designate for such purpose in a notice given to the other
party. Such notice shall be deemed received upon the earliest of the following
to occur: (a) upon personal delivery; (b) on the third Business Day following
the day sent, if sent by registered or certified mail; (c) on the next Business
Day following the day sent, if sent by overnight express courier; and (d) on the
day sent or if such day is not a Business Day on the next Business Day after the
day sent, if sent by telecopy.
8.6 All the covenants of Borrower and all the rights and remedies
of the Lender contained in the Documents shall bind Borrower and its successors
and assigns, and shall inure to the benefit of Lender, its successors and
assigns, whether so expressed or not. Borrower may not assign its rights in the
Documents in whole or in part. Except as may be expressly provided in a
Document, no person or other entity shall be deemed a third party beneficiary
of any provision of the Documents.
8.7 If any one or more of the provisions contained in any Document
shall be held invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained in the
Document shall not in any way be affected or impaired thereby.
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8.8 Time is of the essence in the Performance of the Obligations.
8.9 No modification, variation, termination, discharge,
abandonment or waiver granted or consented to by Lender including a waiver of
the time of the essence standard, shall be deemed to be an abandonment of such
rights.
8.10 All headings are inserted for convenience only and shall not
affect any construction or interpretation of the Documents. Unless otherwise
indicated, all references in a Document to clauses and other subdivisions refer
to the corresponding paragraphs, clauses and other subdivisions of the
Document; the words "herein", "hereof", "hereto", "hereunder" and words of
similar import refer to the Document as a whole and not to any particular
paragraph, clause or other subdivision; the use of any gender shall be deemed
to include other genders, unless inappropriate; and reference to a numbered or
lettered subdivision of an Article, or paragraph shall include relevant matter
within the Article or paragraph which is applicable to but not within such
numbered or lettered subdivision. All Schedules and Exhibits referred to in
this Agreement are incorporated in this Agreement by reference.
8.11 CHOICE OF LAW: JURISDICTION: VENUE AND WAIVER OF JURY TRIAL.
BORROWER AND LENDER AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY,
INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR FROM THIS
LOAN AGREEMENT SHALL BE LITIGATED, AT LENDER'S SOLE DISCRETION AND ELECTION,
ONLY IN COURTS HAVING A SITUS WITHIN THE COUNTY OF XXXX, STATE OF NEW YORK.
BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURT LOCATED WITHIN SAID COUNTY AND STATE. BORROWER HEREBY IRREVOCABLY
APPOINTS AND DESIGNATES CT CORPORATION SYSTEM, WHOSE ADDRESS IS BORROWER, C/O
CT CORPORATION SYSTEM, 0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AS ITS DULY
AUTHORIZED AGENT FOR SERVICE OF LEGAL PROCESS AND AGREES THAT SERVICE OF SUCH
PROCESS UPON SUCH PARTY SHALL CONSTITUTE PERSONAL SERVICE OF PROCESS UPON
BORROWER PROVIDED THAT A COPY OF SUCH PROCESS BE DELIVERED TO BORROWER PURSUANT
TO THE PROVISIONS OF SECTION 8.5 ABOVE. IN THE EVENT SERVICE IS UNDELIVERABLE
BECAUSE SUCH AGENT MOVES OR CEASES TO DO BUSINESS IN NEW YORK, NEW YORK, OR
LENDER WISHES TO HAVE A DIFFERENT AGENT, BORROWER SHALL, WITHIN TEN (10) DAYS
AFTER LENDER'S REQUEST, APPOINT A SUBSTITUTE AGENT (IN NEW YORK, NEW YORK) ON
ITS BEHALF AND WITHIN SUCH PERIOD NOTIFY LENDER OF SUCH APPOINTMENT. IF SUCH
SUBSTITUTE AGENT IS NOT TIMELY APPOINTED, LENDER SHALL, IN ITS SOLE DISCRETION,
HAVE THE RIGHT TO DESIGNATE A SUBSTITUTE AGENT UPON FIVE (5) DAYS NOTICE TO
BORROWER. BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO TRANSFER OR CHANGE
THE VENUE OF ANY LITIGATION BROUGHT AGAINST IT BY LENDER ON THE LOAN DOCUMENTS
IN ACCORDANCE WITH THIS PARAGRAPH.
BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS
LOAN AGREEMENT AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND BY
LENDER, AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON
BEHALF OF LENDER HAS MADE ANY
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REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY JURY OR HAS TAKEN
ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. BORROWER AND LENDER
ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT BORROWER AND LENDER HAVE ALREADY RELIED ON THIS WAIVER IN
ENTERING INTO THIS LOAN AGREEMENT AND THAT EACH OF THEM WILL CONTINUE TO RELY
ON THIS WAIVER IN THEIR RELATED FUTURE DEALINGS. BORROWER AND LENDER FURTHER
ACKNOWLEDGE THAT THEY HAVE BEEN REPRESENTED IN THE SIGNING OF THIS LOAN
AGREEMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL.
ALL OF THE PROVISIONS SET FORTH IN THIS PARAGRAPH ARE A MATERIAL INDUCEMENT FOR
LENDERS'S MAKING THE LOAN TO BORROWER AND BORROWER ACCEPTING THE LOAN FROM
LENDER.
[BORROWER'S INITIALS: ]
------
[LENDER'S INITIALS: /s/ [ILLEGIBLE]]
----------------
8.12 It is the intent of the parties hereto to comply with the
Applicable Usury Law. Accordingly, notwithstanding any provision to the
contrary in the Documents, in no event shall this Agreement or the Documents
require the payment or permit the collection of interest in excess of the
maximum contract rate permitted by the Applicable Usury Law.
8.12 LENDER DOES NOT HEREBY ASSUME AND SHALL HAVE NO
RESPONSIBILITY, OBLIGATION OR LIABILITY TO PURCHASERS, LENDER'S RELATIONSHIP
BEING THAT ONLY OF A CREDITOR WHO HAS TAKEN, AS SECURITY FOR INDEBTEDNESS OWED
TO IT, AN ASSIGNMENT FROM BORROWER OF THE INSTRUMENTS. EXCEPT AS REQUIRED BY
LAW, BORROWER WILL NOT, AT ANY TIME, USE THE NAME OF OR MAKE REFERENCE TO
LENDER WITH RESPECT TO THE TIME-SHARE PROJECTS, THE SALE OF TIME-SHARE
INTERESTS OR OTHERWISE, WITHOUT THE EXPRESS WRITTEN CONSENT OF LENDER.
8.13 Unless otherwise specifically stipulated elsewhere in the
Documents, if a matter is left in the Documents to the decision, determination,
requirement, request, judgment, approval, consent, satisfaction, acceptance,
agreement, option or discretion of Lender, its employees, Lender's counsel or
any agent for or 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 and absolute discretion.
Without limiting the generality of the foregoing, "option" and "discretion"
shall be implied by use of the words "if" or "may".
8.14 All representations, warranties, covenants and agreements made
by Borrower herein, in the other Documents or in any other agreement, document,
instrument or certificate delivered by or on behalf of Borrower under or
pursuant to the Documents shall be considered to have been relied upon by
Lender and shall survive the delivery to Lender of such Documents and the
extension of the Loan (and each part thereof), regardless of any investigation
made by or on behalf of Lender.
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9. ADDITIONAL PROVISIONS
9.1 Management of Real Property. Borrower will at all times cause
the Real Property to be managed by a professional property manager in
accordance with a written management agreement which may include Borrower as
the Manager. Borrower will not modify or extend the term of any management
agreement or enter into a new management agreement in substitution for an
existing management agreement without the prior written consent of Lender if
there is an Event of Default or Incipient Default at the time of such
modification or extension.
9.2 Notice. Any notice or other communication required or
permitted to be given shall be in writing addressed to the respective party as
set forth below and may be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 3:00 p.m. (New
York City time) on a business day; provided that a hard copy of such notice is
also sent pursuant to (c) or (d) below; (c) if by overnight courier, on the
first business day after delivery to the courier; or (d) if by U.S. Mail,
certified or registered mail, return receipt requested on the fourth (4th) day
after deposit in the mail postage prepaid.
Notices to Borrower: Silverleaf Vacation Club, Inc.
Attn: Xxxxxx Xxxx
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Meadows, Owens, Collier, Reed,
Cousins & Blau, L.L.P.
Attn: Xxxxxx Xxxxxx, Esq.
3700 Nations Bank Plaza
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Notices to Lender: CS First Boston Mortgage Capital Corp.
Attn: Principal Transaction Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000)-000-0000
With a copy to: Fieldstone Xxxxxx & Shear
Attn: Xxxxxx X. Xxxx, Esq.
000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
[EXECUTIONS APPEAR ON PAGE 30]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in their respective names, personally or by their duly authorized
representatives as of the date above written.
BORROWER:
SILVERLEAF VACATION CLUB, INC.
a Texas corporation
By: /s/ XXXXXX XXXX
------------------------------------
XXXXXX XXXX,
Chief Executive Officer
LENDER:
CS FIRST BOSTON MORTGAGE CAPITAL CORP.
By: /s/ XXXXX XXXX
------------------------------------
Name: XXXXX XXXX
------------------------------------
Its: Vice President
------------------------------------
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LIST OF EXHIBITS
Exhibit A Assignment of Mortgage(s) (Fee Simple Time-Share Instruments)
Exhibit B Conditions of Eligible Instrument
Exhibit C Environmental Certificate
Exhibit D Promissory Notes
Exhibit E Permitted Encumbrances
Exhibit F Description of Time-Share Projects
Exhibit G Borrower's Certificate
Exhibit H Re-Assignment of Mortgage(s) (Fee Simple Time-Share Instruments)
Exhibit I Additional Condition to Advances
Exhibit J Request for Advance and Certification
Exhibit K Real Property Description
Exhibit L Personal Property Description
The above-listed exhibits are omitted from this filing. Registrant
agrees to furnish supplementally a copy of any omitted exhibit to the
Commission upon request.
