EXHIBIT 10.1
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "SUPPLEMENTAL INDENTURE"), dated as
of October 6, 2006, between SUNTERRA CORPORATION, a Maryland corporation (the
"COMPANY"), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as trustee under the
indenture referred to below (the "TRUSTEE").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 29, 2004, providing
for the issuance of an aggregate principal amount of $95,000,000 of 3 3/4%
Senior Subordinated Convertible Notes due 2024 (the "NOTES");
WHEREAS, Section 9.01 of the Indenture provides, among other things,
that the Company and the Trustee may amend the Indenture and the Notes without
the written consent of any Holder for the purposes of adding to the Company's
covenants for the benefit of the Holders;
WHEREAS, Section 9.02 of the Indenture provides, among other things,
that the Company may amend the Indenture and the Notes with the written consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding of then outstanding Notes (the "MAJORITY HOLDERS")
or by adoption of a resolution at a meeting of Holders at which a quorum is
present by at least a majority in aggregate principal amount of the Notes
represented at the meeting, or waive any noncompliance by the Company;
WHEREAS, the Company intends to amend certain provisions in the
Indenture (the "PROPOSED AMENDMENTS");
WHEREAS, the Majority Holders have consented to the Proposed
Amendments;
WHEREAS, the execution and delivery of this Supplemental Indenture has
been duly authorized and all conditions and requirements necessary to make this
Supplemental Indenture a valid and binding agreement of the Company have been
duly performed and complied with; and
WHEREAS, pursuant to Section 9.06 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree for the equal and ratable
benefit of the holders of the Notes as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
Section 1.01. AMENDMENT OF ARTICLE 4. Article 4 of the Indenture and
any corresponding provisions in the Notes are modified as provided herein:
(a) Section 4.01 (Payment of Principal, Premium, Interest on the Notes)
shall be amended by inserting the following additional paragraph at the end
thereof:
"In addition to the interest payable at the Interest Rate in
respect of the Notes as set forth above, on the Interest Payment Dates
falling on each of March 29, 2007 and September 29, 2007, the Company
will pay additional special interest equal to 1.5625% of the principal
amount of Notes to Holders of record at the close of business on March
15, 2007, in the case of March 29, 2007, or September 15, 2007, in the
case of September 29, 2007."
(b) Section 4.02 (SEC and Other Reports) shall be deleted in its
entirety and replaced with the following:
"SECTION 4.02. SEC and Other Reports. The Company shall file
with the Trustee, within 15 days after it files such annual and
quarterly reports, information, documents and other reports with the
SEC, copies of its annual report and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Company is
required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act; provided, however, it is understood that the Company
shall have no obligation to file any such report, information or
document with the Trustee until such report, information or document is
actually filed with the SEC. If at any time the Company is not subject
to Section 13 or 15(d) of the Exchange Act, such reports shall be filed
with the Trustee at the times the Company would have been required to
file reports with the Trustee had it continued to have been subject to
such reporting requirements. The Company also shall comply with the
provisions of TIA Section 314(a) insofar as they are applicable under
federal law. Notwithstanding the foregoing provisions of this Section
4.02, no Default or Event of Default shall arise from the failure to
comply with this Section 4.02 for any reason at any time prior to the
close of business on March 29, 2008."
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ARTICLE II
Conditions; Effectiveness
Section 2.01. CONDITIONS AND EFFECTIVENESS. This Supplemental Indenture
shall become effective upon execution and delivery by the Company and the
Trustee.
ARTICLE III
Miscellaneous
Section 3.01. INDENTURE RATIFIED. Except as otherwise provided herein,
the Indenture is in all respects ratified and confirmed, and all of the terms,
provisions and conditions thereof shall be and remain in full force and effect.
Section 3.02. COUNTERPARTS. This Supplemental Indenture may be executed
in any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
Section 3.03. TRUSTEE NOT RESPONSIBLE. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the recitals
contained herein, all of which are made solely by the Company.
Section 3.04. GOVERNING LAW. This Supplemental Indenture will be
governed by, and construed in accordance with, the laws of the State of New
York.
Section 3.05. SUCCESSORS. All agreements in this Supplemental Indenture
of the Company or the Trustee shall bind their respective successors and
assigns.
Section 3.06. SEVERABILITY. In case any provisions in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
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IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Supplemental Indenture on behalf of the respective parties hereto
as of the date first above written.
SUNTERRA CORPORATION
By: /s/ Xxxxxxxxx X. Xxxxxx
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Name: Xxxxxxxxx X. Xxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
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