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Exhibit 10.6.15
AMENDMENT TO VARIOUS LOAN AND COMMITMENT AGREEMENTS
This Amendment to Various Loan and Commitment Agreements and Loan and
Security Agreements (this "Amendment") is entered into as of this 18th day of
February, 1998 by and between FINOVA CAPITAL CORPORATION, a Delaware
corporation, formerly known as Greyhound Financial Corporation ("Lender"),
SIGNATURE RESORTS, INC., a Maryland corporation ("Signature"), LAKE TAHOE RESORT
PARTNERS, LLC, a California limited liability company ("Lake Tahoe"), GRAND
BEACH RESORT, LIMITED PARTNERSHIP, a Georgia limited partnership ("Grand
Beach"), PORT ROYAL RESORT L.P., a South Carolina limited partnership ("Port
Royal"), AKGI-SINT MAARTEN, N.V., a Netherlands Antilles corporation, ("AKGI"),
ALL SEASONS RESORTS, INC., an Arizona corporation ("All Seasons"), AVCOM
INTERNATIONAL, INC., a Delaware corporation ("Avcom"), and KABUSHIKI GAISHA KEI,
L.L.C., a California limited liability company ("KGK").
R E C I T A L S
A. Lender's predecessor-in-interest, Greyhound Real Estate Finance
Company, an Arizona corporation ("GREFCO"), and Cypress Pointe Resorts, L.P., a
Delaware limited partnership ("Cypress"), entered into that Construction Loan
Agreement dated as of December 19, 1991 pursuant to which GREFCO agreed to make
a construction loan to Cypress for the purposes more particularly described
therein (such Construction Loan Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred to
collectively as the "Cypress Construction Loan Agreement"). GREFCO and Cypress
also entered into that Loan and Security Agreement dated as of December 19,
1991 pursuant to which Lender agreed to make receivables and working capital
loans to Cypress (such Loan and Security Agreement, together with any and all
renewals, extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred to
collectively as the "Cypress Receivables Loan Agreement"). Pursuant to that
Assignment dated as of January 13, 1993 by and between GREFCO and Lender,
GREFCO assigned to Lender all of GREFCO's rights and obligations under the
Cypress Construction Loan, the Cypress Construction Loan Agreement, the Cypress
Receivables Loan and the Cypress Receivables Loan Agreement, and all documents
and instruments executed in connection therewith.
B. Lender and San Xxxx Resort Partners, L.L.C., a Georgia limited
liability company ("San Xxxx"), entered into that Construction Loan Agreement
dated as of June 6, 1996 pursuant to which Lender agreed to make a construction
loan to San Xxxx for the purposes more particularly set forth therein (such
Construction Loan Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modifications,
whether now or hereafter existing, is hereinafter referred to collectively as
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the "San Xxxx Construction Loan Agreement"). San Xxxx and Lender also entered
into that Loan and Security Agreement dated as of June 6, 1996 pursuant to which
Lender agreed to make receivables and working capital loans to San Xxxx for the
purposes more specifically described therein (such Loan and Security Agreement,
together with any and all renewals, extensions, amendments, replacements,
restatements, supplements or modifications, whether now or hereafter existing,
is hereinafter referred to collectively as the "San Xxxx Receivables Loan
Agreement").
C. Lender and Lake Tahoe entered into that Construction Loan Agreement
dated as of April 29, 1996 pursuant to which Lender agreed to make a
construction loan to Lake Tahoe for the purposes more particularly set forth
therein (such Construction Loan Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred to
collectively as the "Lake Tahoe Construction Loan Agreement"). Lake Tahoe and
Lender also entered into that Loan and Security Agreement dated as of April 29,
1996 pursuant to which Lender agreed to make receivables and working capital
loans to Lake Tahoe for the purposes more specifically described therein (such
Loan and Security Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modifications, whether
now or hereafter existing, is hereinafter referred to collectively as the "Lake
Tahoe Receivables Loan Agreement").
D. Lender and Grand Beach entered into that Construction Loan Agreement
dated as of October 7, 1994 pursuant to which Lender agreed to make a
construction loan to Grand Beach for the purposes more particularly set forth
therein (such Construction Loan Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred to
collectively as the "Grand Beach Construction Loan Agreement"). Grand Beach and
Lender also entered into that Loan and Security Agreement dated as of October 7,
1994 pursuant to which Lender agreed to make receivables and working capital
loans to Grand Beach for the purposes more specifically described therein (such
Loan and Security Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modifications, whether
now or hereafter existing, is hereinafter referred to collectively as the "Grand
Beach Receivables Loan Agreement").
E. Lender and Port Royal entered into that Construction Loan Agreement
dated as of October 7, 1993 pursuant to which Lender agreed to make a
construction loan to Port Royal for the purposes more particularly set forth
therein (such Construction Loan Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred to
collectively as the "Port Royal Construction Loan Agreement"). Port Royal and
Lender also entered into that Loan and Security Agreement dated as of October
7, 1993 pursuant to which Lender agreed to make receivables loan to Port Royal
for the purposes more specifically described therein (such Loan and Security
Agreement, together with any
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and all renewals, extensions, amendments, replacements, restatements,
supplements or modifications, whether now or hereafter existing, is hereinafter
referred to collectively as the ("Port Royal Receivables Loan Agreement").
F. Lender and KGK entered into that Loan and Security Agreement dated
as of December 1, 1995, pursuant to which Lender agreed to make to KGK a
receivables loan for the purposes and upon the terms and conditions set forth
therein (such Loan Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modifications, whether
now or hereafter existing, are hereinafter referred to collectively as the KGK
Loan Agreement").
G. Lender and AKGI-Royal Palm, C.V.o.a., a Netherlands Antilles limited
partnership ("Royal Palm"), entered into that Loan and Security Agreement dated
as of July 12, 1995, pursuant to which Lender agreed to make to Royal Palm an
acquisition and development loan (the "Royal Palm A&D Loan") and a receivables
loan (the "Royal Palm Receivables Loan"). The Loan and Security Agreement,
together with any and all renewals, extensions, amendments, replacements,
restatements, supplements or modifications, whether now or hereafter existing,
is hereinafter collectively referred to as the "Royal Palm Loan Agreement." The
obligations of Royal Palm under the Royal Palm A&D Loan and the Royal Palm
Receivables Loan are guaranteed by AKGI pursuant to that Corporate Guarantee
Agreement dated as of July 12, 1995.
H. Lender and AKGI-Flamingo, C.V.o.a., a Netherlands Antilles limited
partnership ("Flamingo"), entered into that Loan and Security Agreement dated
as of September 1, 1995, pursuant to which Lender agreed to make to Flamingo an
acquisition and development loan (the "Flamingo A&D Loan") and a receivables
loan (the "Flamingo Receivables Loan"). The Loan and Security Agreement,
together with any and all renewals, extensions, amendments, replacements,
restatements, supplements or modifications, whether now or hereafter existing,
is hereinafter collectively referred to as the "Flamingo Loan Agreement." The
obligations of Flamingo under the Flamingo A&D Loan and the Flamingo
Receivables Loan are guaranteed by AKGI pursuant to the terms and conditions of
that Corporate Guarantee Agreement dated as of September 1, 1995 (the "Flamingo
Guarantee").
I. Resort Capital Corporation ("RCC") and Fall Creek Resort, L.P., a
Georgia limited partnership ("Fall Creek"), entered into that Commitment
Agreement dated as of May 21, 1993 pursuant to which Lender agreed to purchase
certain portfolios of promissory notes and mortgages then existing and
thereafter arising from sales by Fall Creek to individuals purchasing interval
estates in specific condominium parcels developed by Fall Creek as a time share
condominium project known as The Plantation at Fall Creek (the "Fall Creek
Purchase") for the purposes and upon the terms and conditions set forth therein
(such Commitment Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modification, whether
now or hereafter existing, is hereinafter referred to collectively as the "Fall
Creek Commitment Agreement").
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J. Pursuant to that Private Placement Memorandum dated as of May 28,
1996, Signature solicited and received the consent and agreement of the general
partner and limited partner of Cypress and the members of San Xxxx to exchange
their respective interests in Cypress and San Xxxx for shares of common stock
in Signature (the "Consent Solicitation"). Pursuant to the Consent
Solicitation, the general partner and limited partner of Cypress and the
members of San Xxxx have exchanged their respective interests in such entities
for shares of common stock in Signature. Essentially simultaneously therewith,
each of the corporate partners or members of Cypress and San Xxxx were merged
with and into Signature, and each of the interests of the partners and members
of Cypress and San Xxxx were transferred to Signature. As of the date of this
Agreement, Signature constitutes the surviving corporation of such mergers and
interest transfers.
K. Further, pursuant to the Consent Solicitation, Signature solicited
and received the consent and agreement of the general partners and limited
partners of Royal Palm and Flamingo to exchange their respective interests in
Royal Palm and Flamingo for shares of common stock in Signature. As a result,
all of the outstanding shares of stock of AKGI were transferred to and are held
by Signature, and Royal Palm and Flamingo were dissolved into AKGI (the "AKGI
Merger"). As a result of the AKGI Merger as described in the Deed of
Acknowledgment executed in connection with Royal Palm dated on or about August
15, 1996 (the "Royal Palm Deed of Acknowledgment") and in the Deed of
Acknowledgment executed in connection with Flamingo dated on or about August
15, 1996 (the "Flamingo Deed of Acknowledgment"), AKGI succeeded as a matter of
law to all rights and privileges of Royal Palm and Flamingo and became directly
responsible and liable for all liabilities and obligations of Royal Palm and
Flamingo.
L. Pursuant to that Private Placement Memorandum dated as of May 28,
1996, Signature solicited and received the consent and agreement of the general
and limited partners of Fall Creek to exchange their respective interests in
Fall Creek for shares of common stock in Signature (the "Fall Creek Consent
Solicitation"). Pursuant to the Fall Creek Consent Solicitation, the general
and limited partners of Fall Creek have exchanged their respective interests in
such entities for shares of common stock in Signature. Essentially
simultaneously therewith, each of the general and limited partners of Fall
Creek were merged with and into Signature, and each of the interests of the
general and limited partners of Fall Creek were transferred to Signature.
Signature constitutes the surviving corporation of such interest transfers.
M. Signature and Avcom completed a merger pursuant to that certain
Agreement and Plan of Merger by and between Signature and Avcom, dated
September 22, 1996, as amended by that First Amendment to Agreement and Plan of
Merger dated November 15, 1996, and that Second Amendment to Agreement and Plan
of Merger dated December 18, 1996 and that certain Certificate of Merger of ASP
Acquisition Corp. in to Avcom to be filed with the Delaware Secretary of State
(the "Merger Transaction") whereby
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a wholly owned subsidiary of Signature, ASP Acquisition Company, a Delaware
corporation, merged into Avcom with the result that Avcom became the sole
surviving entity of such merger and a wholly owned subsidiary of Signature. All
Seasons remains a wholly owned subsidiary of Avcom.
N. Pursuant to that certain Assumption Agreement dated as of August 15,
1996, Signature assumed all of the liabilities and obligations of Cypress under
the Cypress Construction Loan Agreement and the Cypress Receivables Loan
Agreement. Pursuant to the aforementioned Assumption Agreement, Signature also
assumed all of the liabilities and obligations of San Xxxx under the San Xxxx
Construction Loan Agreement and the San Xxxx Receivables Loan Agreement.
O. Pursuant to that certain Assumption Agreement dated as of August 15,
1996, AKGI assumed all of the liabilities and obligations of Royal Palm under
the Royal Palm Loan Agreement and under the Flamingo Loan Agreement.
P. Pursuant to that certain Assumption Agreement dated as of August 15,
1996 between Signature and RCC, Signature assumed all liabilities and
obligations of Fall Creek as seller under the Fall Creek Purchase and the Fall
Creek Commitment Agreement.
Q. Lender has succeeded to the rights of RCC under the Fall Creek
Purchase and Fall Creek Commitment Agreement.
R. Signature is the owner of all the constituent members of Lake Tahoe.
S. Signature is the owner of all the constituent general and limited
partners of Grand Beach.
T. Signature is the owner of all the constituent general and limited
partners of Port Royal.
U. Signature is the owner of all the constituent general and limited
partners of KGK.
V. Signature, Lake Tahoe, Grand Beach, Port Royal, KGK and Lender
desire and intend by this Amendment to modify certain of the covenants
contained within the Signature Loan Agreements (as defined below).
W. Lender and AKGI desire and intend by this Amendment to set forth
their understanding concerning certain covenant and reporting requirements that
are required of AKGI in respect of the two attachments that are recorded as
liens against the Real Property as that term is defined in the Royal Palm Loan
Agreement ("Attachments").
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X. Lender and Signature desire and intend by this Amendment to set
forth their mutual understanding concerning certain portfolio replacement
obligations required of Signature under the Fall Creek Commitment Agreement.
Y. Signature, Avcom, All Seasons and Lender desire to set forth their
mutual understanding concerning the governing law under the All Seasons
Purchase Documents and the All Seasons Loan Documents, as defined below.
NOW, THEREFORE, in consideration of the foregoing Recitals and all of
the covenants contained in this Amendment, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Lender, Signature, Lake Tahoe, Grand Beach, Port Royal AKGI, KGK, Avcom and All
Seasons hereby jointly and severally state, confirm and agree as follows:
A G R E E M E N T
1. DEFINITIONS. The following terms shall have the meaning ascribed
to them below.
1.1 "All Seasons Loan Documents" shall have the same meaning as
the term "Loan Documents", as defined in that certain Ratification
Agreement dated February 7, 1997 among Lender, FINOVA Portfolio Services,
Inc., All Seasons, AVCOM and Signature.
1.2 "All Seasons Purchase Documents" shall have the same meaning
as the term "Purchase Documents", as defined in that certain Ratification
Agreement dated February 7, 1997 among Lender, FINOVA Portfolio Services,
Inc., All Seasons, AVCOM and Signature.
1.3 "Attachments" shall have the meaning set forth in the
Recitals to this Agreement.
1.4 "Cost of Time-Share Interest Sold" shall mean the "vacation
interval and point cost of sale" line item as reflected in Signatures' and
the Signature Affiliates' financial statements prepared in accordance with
GAAP.
1.5 "GAAP" shall mean generally accepted accounting principles
as in effect from time to time, which shall include the official
interpretations thereof by the Financial Accounting Standards Board or any
successor thereto.
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1.6 "General and Administrative Expenses" shall mean the
"general and administrative expense" line item reflected on Signature's and
the Signature Affiliates' financial statements, prepared in accordance with
GAAP.
1.7 "Indebtedness" shall mean all liabilities, obligations and
reserves, contingent or otherwise, which in accordance with GAAP, would be
reflected as a liability on a balance sheet would be required to be
disclosed in a financial statement.
1.8 "Marketing Expense" shall mean the aggregate of all expenses
incurred by Signature and the Signature Affiliates in the sale and
marketing of Time-Share Interest including, without limitation, all costs
and expenses for advertising, mailing, consumer premiums, referral lead
generation, closing costs and sales commissions.
1.9 "Net Sales" shall mean the gross sale of Time-Share
Interests during any period reduced only by cancellations thereof.
1.10 "Signature Affiliates" means, individually and
collectively, Lake Tahoe, Grand Beach, Port Royal, and KGK.
1.11 "Signature Loan Agreements" shall mean, individually and
collectively, the Cypress Construction Loan Agreement, the Cypress
Receivables Loan Agreement, the San Xxxx Construction Loan Agreement, the
San Xxxx Receivables Loan Agreement, the Lake Tahoe Construction Agreement,
the Lake Tahoe Receivables Loan Agreement, the Grand Beach Construction
Loan Agreement, the Grand Beach Receivables Loan Agreement, the Port Royal
Construction Loan Agreement, the Port Royal Receivables Loan Agreement and
the KGK Loan Agreement.
1.12 "Signature Loan Documents" shall have the meaning set forth
in paragraph 4 hereof.
1.13 "Tangible Net Worth" means shall mean, with respect to any
date of determination, Signature's net worth as determined in accordance
with GAAP plus the pre-tax LIFO reserves, minus each of (i) general
intangibles (including without limitation, customer lists, franchise
agreements, licenses, goodwill, non-competition agreements, subscription
lists, and organizational expenses), (ii) monies due from officers or
directors, (iii) direct or indirect loans to stockholders, Signature
Affiliates or other affiliates, (iv) security deposits, (v) prepaid costs
and expenses, and (vi) "other assets" under Signature's financial
statements pursuant to GAAP.
1.14 "Time-Share Interest" shall mean the rights sold to a
consumer for the exclusive use of a timeshare unit and the common areas
associated therewith,
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in real property owned by Signature or a Signature Affiliate, for a one week
period during each year or alternate year.
2. Amendments.
2.1 Net Worth Covenant. The net worth covenant contained in
(i) Section 9.19(a) of the Cypress Construction Loan
Agreement, as amended,
(ii) Section 8.22(a) of the Cypress Receivables Loan
Agreement, as amended,
(iii) Section 9.19(a) of the Port Royal Construction
Loan Agreement, as amended,
(iv) Section 8.22(a) of the Port Royal Receivables
Loan Agreement;
(v) Section 9.19(a) of the Grand Beach Construction
Loan Agreement,
(vi) Section 8.22(a) of the Grand Beach Receivables
Loan Agreement,
(vii) Section 9.19(a) of the San Xxxx Construction
Loan Agreement.
(viii) Section 8.22(a) of the San Xxxx Receivables Loan
Agreement,
(ix) Section 9.19(a) of the Lake Tahoe Construction
Loan Agreement,
(x) Section 8.22(a) of the Lake Tahoe Receivables
Loan Agreement, and
(xi) Section 8.22(a) of the KGK Loan Agreement, shall
be amended and restated in their entirety as follows:
"Signature shall maintain and each of the Signature
Affiliates shall cause Signature to maintain, a Tangible
Net Worth of not less than
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Ninety Million Dollars ($90,000,000) which covenants shall be tested
on a quarterly basis."
2.2 Marketing Expense. The marketing and sales covenant contained in
(i) Section 9.19(b) of the Cypress Construction Loan
Agreement, as amended,
(ii) Section 8.22(b) of the Cypress Receivables Loan
Agreement, as amended,
(iii) Section 9.19(b) of the Port Royal Construction Loan
Agreement, as amended,
(iv) Section 8.22(b) of the Port Royal Receivables Loan
Agreement;
(v) Section 9.19(b) of the Grand Beach Construction Loan
Agreement;
(vi) Section 8.22(b) of the Grand Beach Receivables Loan
Agreement,
(vii) Section 9.19(b) of the San Xxxx Construction Loan
Agreement,
(viii) Section 8.22(b) of the San Xxxx Receivables Loan
Agreement,
(ix) Section 9.19(b) of the Lake Tahoe Construction Loan
Agreement, and
(x) Section 8.22(b) of the Lake Tahoe Receivables Loan
Agreement
shall be amended and restated in their entirety as follows:
"The cumulative aggregate Marketing Expenses of Signature and the
Signature Affiliates shall not exceed fifty percent (50%) of the
cumulative aggregate of Net Sales of Signature and the Signature
Affiliates, which covenant shall be tested on a consolidated quarterly
basis."
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2.3 KGK Marketing Expense. The KGK Loan Agreement shall be amended
with the addition of the following marketing covenant:
"The cumulative aggregate Marketing Expenses of Signature and the
Signature Affiliates shall not exceed fifty percent (50%) of the
cumulative aggregate Net Sales of Signature and the Signature
Affiliates, which covenants shall be tested on the consolidated
quarterly basis."
2.3 G and A Expense. The general and administrative expense covenant
contained in
(i) Section 9.19(c) of the Port Royal Construction Loan
Agreement, as amended,
(ii) Section 8.22(c) of the Port Royal Receivables Loan Agreement;
(iii) Section 9.19(c) of the Grand Beach Construction Loan
Agreement,
(iv) Section 8.22(c) of the Grand Beach Receivables Loan Agreement,
(v) Section 9.19(c) of the San Xxxx Construction Loan Agreement,
(vi) Section 8.22(c) of the San Xxxx Receivables Loan Agreement,
(ix) Section 9.19(c) of the Lake Tahoe Construction Loan
Agreement, and
(x) Section 8.22(c) of the Lake Tahoe Receivables Loan Agreement
shall be amended and restated in their entirety as follows:
"The cumulative aggregate General and Administrative Expenses
of Signature and the Signature Affiliates shall not exceed
sixteen percent (16%) of the cumulative aggregate total
revenues of Signature and the
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Signature Affiliates, which covenant shall be tested on a
consolidated quarterly basis."
2.5 Cypress G and A Expense. The Cypress Construction Loan Agreement
and the Cypress Receivables Loan Agreement shall be amended with the
additional following general and administrative expense covenant:
"The cumulative aggregate General and Administrative Expenses of
Signature and the Signature Affiliates shall not exceed sixteen
percent (16%) of the cumulative aggregate total revenue of
Signature and the Signature Affiliates, which covenant shall be
tested on a consolidated quarterly basis."
2.6 KGK G and A Expense. The KGK Loan Agreement shall be amended
with the addition of the following General and Administrative Expense
covenant:
"The cumulative aggregate General and Administrative Expenses of
Signature and the Signature Affiliates shall not exceed sixteen
percent (16%) of the cumulative aggregate total revenue of
Signature and the Signature Affiliates, which covenant shall be
tested on a consolidated quarterly basis."
2.7 Cost of Sale. Each Signature Loan Agreement shall be amended
with the addition of the following additional financial covenants:
"The cumulative aggregate Cost of Time-Share Interest Sold of
Signature and the Signature Affiliates shall not exceed
twenty-eight (28%) of the cumulative aggregate Net Sales of
Signature and the Signature Affiliates, which covenant shall be
tested on a consolidated quarterly basis."
2.8 Other Financial Covenants. The following financial covenants
shall be deleted from the following Signature Loan Agreements:
Description of
Name of Agreement Paragraph No. Covenant
Cypress Construction Loan Agreement 9.19(c) Debt to Net Worth
Cypress Receivables Loan Agreement 8.22(c) Debt to Net Worth
Cypress Receivables Loan Agreement 8.22(d) Capital Leases
Cypress Construction Loan Agreement 10.9 Distributions
Cypress Receivables Loan Agreement 8.21 Distributions
Port Royal Construction Loan Agreement 10.8 Distributions
Port Royal Receivables Loan Agreement 8.21 Distributions
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Grand Beach Construction Loan Agreement 10.8 Distribution
Grand Beach Receivables Loan Agreement 8.21 Distributions
Lake Tahoe Construction Loan Agreement 10.8 Distributions
Lake Tahoe Receivables Loan Agreement 8.21 Distributions
San Xxxx Construction Loan Agreement 10.8 Distributions
San Xxxx Receivables Loan Agreement 8.21 Distribution
KGK Loan Agreement 8.21 Distribution
2.9 Attachments. The Royal Palm Loan Agreement is hereby amended to
require the following:
On February 27, 1998 and on the last business day of each
succeeding month thereafter, until the Attachments are satisfied
in full or released, AKGA shall give to Lender a written report
concerning the status of the Attachments, updating Lender on any
relevant developments concerning the Attachments since the last
update report. In addition AKGI shall promptly respond to any
inquiries of Lender concerning the Attachments. In the event the
holder of the Attachments initiates any efforts to foreclose or
realize upon the same, AKGI shall promptly give Lender written
notice of such action and shall promptly pay the Attachments in
full prior to the conclusion of such foreclosure or other
realization process.
2.10 Fall Creek Accounts. The Fall Creek Commitment Agreement is
hereby amended to require the following:
Within thirty (30) days following the date hereof, Signature
shall deliver to Lender title insurance policies in a form and
from an underwriter satisfactory to Lender insuring Lender's
title as to those accounts set forth in the attached Exhibit A.
Within thirty five (35) days following the date hereof Signature
shall repurchase from Lender any accounts set forth in the
attached Exhibit A with respect to which an acceptable title
insurance policy has not been delivered, for an amount equal to
the unpaid balance of such account plus Servicing Fees (as
defined in the Fall Creek Commitment Agreement).
2.11 All Seasons Choice of Laws. Signature, All Seasons and Avcom
hereby jointly and severally agree that the All Seasons Purchase Documents and
the All Seasons Loan Documents are hereby governed by and construed in
accordance with the internal laws of the State of Arizona and the All Seasons
Loan Documents and All Seasons Purchase Documents are hereby amended
accordingly.
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3. AKGI. AKGI shall not be considered a Signature Affiliate for
purposes of this Amendment and the financial covenants binding upon AKGI shall
be as set forth in the existing agreements between Lender and AKGI.
4. Document Reference. All references to the "Loan Agreement" in
the documents executed in connection with the Signature Loan Agreements (the
"Signature Loan Documents") and to "this Agreement", "herein", "hereof",
"hereto", and "hereunder" in any of the Signature Loan Agreements are hereby
amended to refer to the relevant Signature Loan Agreement as amended through
this Amendment.
5. Fees and Expenses. Signature and each Signature Affiliate
jointly and severally agree to pay, on demand, all costs and expenses of Lender
arising from the preparation of this Amendment and the closing of this
Amendment or otherwise incurred by Lender in connection with this Amendment.
6. Authority. Signature, each Signature Affiliate, AKGI, All
Seasons and AVCOM jointly and severally warrant and represent to Lender that
the person executing this Amendment on behalf of Signature, Such Signature
Affiliate, AKGI, All Seasons or AVCOM, as the case may be, is fully authorized
and empowered to do so and that this Amendment, as executed and delivered, is
binding and enforceable against Signature, each Signature Affiliate, AKGI, All
Seasons and AVCOM.
7. Confirmation of Representations, Warranties and Agreements.
7.1 Signature and the Signature Affiliates jointly and severally
reaffirm the validity, enforceability and legality of the Signature Loan
Documents and all provisions of the Signature Loan Documents, as modified, are
hereby confirmed and ratified; provided, however, that with respect to
enforceability and legality, such reaffirmation only to the best of Signature's
and each Signature Affiliate's knowledge. Signature and the Signature Affiliates
jointly and severally acknowledge that as of the date hereof, they have (i) no
defense, counterclaim, offset, cross-complaint, claim or demand of any nature
whatsoever which can be asserted as a basis to seek affirmative relief or
damages from Lender or as a basis to reduce or eliminate all or any part of its
liability to repay the loans which are the subject matter of the Signature Loan
Documents and (ii) no other claim against Lender with respect to any aspect of
the transaction in respect to which such loans were made.
7.2 AKGI reaffirms the validity, enforceability and legality of the
Royal Palm Loan Agreement and the documents executed in connection therewith
and the Flamingo Loan Agreement and the documents executed in connection and
all provisions of the aforementioned agreements and documents are hereby
confirmed and ratified; provided, however, that with respect to enforceability
and legality, such reaffirmation only to the best of AKGI's knowledge. AKGI
acknowledges that as of the date hereof, it has (i) no defense, counterclaim,
offset, cross-complaint, claim or demand of any nature whatsoever which can
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be asserted as a basis to seek affirmative relief or damages from Lender or as
a basis to reduce or eliminate all or any part of its liability to repay the
loans which are the subject matter of the Royal Palm Loan Agreement or the
Flamingo Loan Agreement and (ii) no other claim against Lender with respect to
any aspect of the transaction in respect to which such loans were made.
7.3 Signature reaffirms the validity, enforceability and legality of
the Fall Creek Purchase and the Fall Creek Commitment Agreement and all
documents executed in connection thereunder and all provisions of the
aforementioned agreements are hereby confirmed and ratified; provided, however,
that with respect to enforceability and legality, such reaffirmation only to
the best of Signature's knowledge. Signature acknowledges that as of the date
hereof, it has (i) no defense, counterclaim, offset, cross-complaint, claim or
demand of any nature whatsoever which can be asserted as a basis to seek
affirmative relief or damages from Lender or as a basis to reduce or eliminate
all or any part of its liability to repay the loans or other obligations which
are the subject matter of the Fall Creek Purchase and Fall Creek Commitment
Agreement and (ii) no other claim against Lender with respect to any aspect of
the transaction in respect to which such loans or other obligations were made.
7.4 Signature, All Seasons and AVCOM jointly and severally reaffirm
the validity, enforceability and legality of the All Seasons Loan Documents and
the All Seasons Purchase Documents and all provisions of the All Seasons Loan
Documents and the All Seasons Purchase Documents are hereby confirmed and
ratified; provided, however, that with respect to enforceability and legality,
such reaffirmation only to the best of Signature's, All Season's and AVCOM's
knowledge. Signature, All Season and AVCOM jointly and severally acknowledge
that as of the date hereof, they have (i) no defense, counterclaim, offset,
cross-complaint, claim or demand of any nature whatsoever which can be asserted
as a basis to seek affirmative relief or damages from Lender or as a basis to
reduce or eliminate all or any part of its liability to repay the loans or
other obligations which are the subject matter of the All Seasons Loan
Documents and the All Seasons Purchase Documents and (ii) no other claim
against Lender with respect to any aspect of the transaction in respect to
which such loans or other obligations were made.
8. Counterparts. This Amendment may be executed in any number of
separate counterparts, each of which when taken together shall constitute one
and the same instrument notwithstanding the fact that all parties have not
signed the same counterpart. Delivery of an executed counterpart of this
Amendment by telefacsimile shall be equally as effective as delivery of a
manually executed counterpart of this Amendment. Any party delivering an
executed counterpart of this Amendment by telefacsimile shall also deliver a
manually executed counterpart of this Amendment, but the failure to deliver a
manually executed counterpart shall not affect the validity, enforceability,
and binding effect of this Amendment.
14
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SIGNATURE RESORTS, INC., a Maryland
corporation
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Its: XXXXX X. XXXXXXXX
---------------------------------
VICE PRESIDENT AND TREASURER
PORT ROYAL RESORT, L.P.
a South Carolina limited partnership
By: Argosy/KGI Port Royal Partners,
a South Carolina general partnership
By: KGI Port Royal, Inc.
a South Carolina corporation,
General Partner
/s/ XXXXX X. XXXXXXXX
-----------------------------
By: Xxxxx X. Xxxxxxxx
Its: Vice President
LAKE TAHOE RESORTS PARTNERS, LLC, a
California limited liability company
By: AKGI Lake Tahoe Investments, Inc.
a California corporation
Its Member
By: /s/ XXXXX X. XXXXXXXX
-----------------------------
Name: Xxxxx X. Xxxxxxxx
Its: Vice President
15
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GRAND BEACH RESORT, LIMITED PARTNERSHIP,
a Georgia limited partnership
By: Grand Beach Partners, L.P.,
a California limited partnership
Title: General Partner
By: Argosy/KGI Grand Beach Investment
Partnership, a California general
partnership
Title: General Partner
By: KGI Grand Beach Investments, Inc.,
a California corporation
Title: Managing General Partner
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
AKGI-SINT MAARTEN, N.V., a Netherlands
Antille corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
ALL SEASONS RESORTS, INC., an Arizona
corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
16
17
AVCOM INTERNATIONAL, INC., a Delaware
corporation
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
KABUSHIKI GAISHA KEI LLC, a California
limited liability company
By: Argosy Partners, Inc., a Georgia corporation
Its: Member
By: /s/ XXXXX X. XXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By: /s/
---------------------------------
Its:
-----------------------------
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CONSENT OF GUARANTORS
By their execution below, the Guarantors below consent and agree to the
terms, covenants and conditions set forth in this Amendments, and agree that
their respective obligations under each of the Guaranty Agreements executed by
the undersigned in favor of FINOVA Capital Corporation shall remain in full
force and effect and continue to guarantee the obligations described
thereunder, notwithstanding the making of the agreements set forth in this
Amendment.
GRAND BEACH PARTNERS, L.P.,
a California limited partnership
By: ARGOSY/KGI GRAND BEACH
INVESTMENT PARTNERSHIP, a California general
partnership, its General Partner
By: KGI GRAND BEACH INVESTMENTS,
INC., a California corporation, its
Managing General Partner
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Its Vice President
ARGOSY/KGI GRAND BEACH INVESTMENT
PARTNERSHIP, a California general partnership
By: KGI GRAND BEACH INVESTMENTS, INC., a
California corporation, its Managing General
Partner
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Its Vice President
ARGOSY GRAND BEACH, INC., a Georgia
corporation
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Its Vice President
19
KGI GRAND BEACH INVESTMENTS, INC., a
California corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Its: Vice President
ARGOSY PARTNERS, INC., a Georgia
corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Its: Vice President
ARGOSY/KGI PORT ROYAL PARTNERS, a South
Carolina general partnership
By: KGI PORT ROYAL, INC., a South
Carolina corporation, its Managing
General Partner
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Its: Vice President
KGK LAKE TAHOE DEVELOPMENT, INC., a
Delaware corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Its: Vice President
AKGI LAKE TAHOE INVESTMENTS, INC., a
California corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------------
Its: Vice President
18
20
AKGI-FLAMINGO, C.V.o.a., a Netherlands Antilles
limited partnership with its capital divided into shares
By: AKGI-SINT MAARTEN, N.V., a Netherlands
Antilles corporation with limited liability, its
General Partner
By /s/ XXXXX X. XXXXXXXX
-----------------------------------------------
Its Vice President
AKGI-ROYAL PALM, C.V.o.a., a Netherlands
Antilles limited partnership with its capital
divided into shares
By: AKGI-SINT MAARTEN, N.V., a Netherlands
Antilles corporation with limited liability, its
General Partner
By /s/ XXXXX X. XXXXXXXX
-----------------------------------------------
Its Vice President
21
ADDITIONAL REVOLVING CREDIT NOTE
--------------------------------
Dallas, Texas $12,000,000 February 19, 1998
SIGNATURE RESORTS, INC., a Maryland corporation (the "Borrower"), for
value received, promises to pay to the order of NationsBank of Texas, N.A.
("Lender"), at the principal office of NationsBank of Texas, N.A. in Dallas
County, Texas, in lawful money of the United States of America, the principal
sum of TWELVE MILLION and NO/100 DOLLARS ($12,000,000), or such lesser sum as
shall be due and payable from time to time hereunder, as hereinafter provided.
All terms used but not defined herein shall have the meanings set forth in the
Credit Agreement described below.
Principal of and interest on the unpaid principal balance of advances
under this Additional Revolving Credit Note (the "Note") from time to time
outstanding shall be due and payable as set forth in the Credit Agreement and
the other Loan Documents.
This Note is issued pursuant to and evidences additional Revolving Credit
Advances under a Credit Agreement, dated as of January 9, 1998, among the
Borrower, NationsBank of Texas, N.A., as Administrative Lender, and the lenders
parties thereto (as amended, restated, supplemented, renewed, extended or
otherwise modified from time to time, "Credit Agreement"), to which reference
is made for a statement of the rights and obligations of the Lender and the
duties and obligations of the Borrower in relation thereto; but neither this
reference to the Credit Agreement nor any provision thereof shall affect or
impair the absolute and unconditional obligation of the Borrower to pay the
principal sum of and interest on this Note when due.
THIS NOTE AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS (WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW), AND OF THE UNITED STATES OF AMERICA. THE
BORROWER AGREES THAT THE STATE AND FEDERAL COURTS OF TEXAS LOCATED IN DALLAS,
TEXAS SHALL HAVE JURISDICTION OVER THE PROCEEDINGS IN CONNECTION WITH THIS NOTE
AND THE OTHER LOAN DOCUMENTS.
THIS NOTE, TOGETHER WITH THE OTHER LOAN DOCUMENTS, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR
22
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
SIGNATURE RESORTS, INC.
By: /s/ XXXXX X. XXXXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President and Treasurer
2
