EXHIBIT 99.1
SUBORDINATED LOAN AND REIMBURSEMENT AGREEMENT
THIS SUBORDINATED LOAN AND REIMBURSEMENT AGREEMENT ("Agreement") is
made this 8th day of September, 2003, by and between ResortQuest International,
Inc., a Delaware corporation ("Borrower") and XXXXXXX ENTERTAINMENT COMPANY
("Lender").
W I T N E S S E T H:
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WHEREAS, Borrower, Lender and GET Merger Sub, Inc., a wholly-owned
subsidiary of Lender, have entered into that certain Agreement and Plan of
Merger dated as of August 4, 2003 (the "Merger Agreement"), pursuant to which
GET Merger Sub, Inc. will merge with and into Borrower (the "Merger");
WHEREAS, pursuant to Section 5.19 of the Merger Agreement, Borrower
desires to obtain a non-revolving line of credit in the maximum principal amount
of TEN MILLION DOLLARS ($10,000,000) (the "Loan") on the terms hereinafter set
forth;
WHEREAS, at Borrower's request, Lender made application with Bank of
America, N.A. ("B of A") pursuant to which B of A issued a letter of credit in
the face amount of $5,000,000, for the account of Borrower, in favor of
Paymentech, L.P. (the "Letter of Credit");
WHEREAS, in order to induce Lender to make the Loan to Borrower and
make application for the Letter of Credit, Borrower has made certain
representations to Lender; and
WHEREAS, in reliance upon the representations of Borrower to Lender,
Lender has agreed to make the Loan and make application for the Letter of Credit
upon the terms and conditions set forth herein;
NOW, THEREFORE, for and in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Borrower and Lender hereby agree as follows:
1. The Loan.
(a) Note. The Loan shall be evidenced by a Subordinated Master
Promissory Note of even date herewith in the maximum principal amount
of $15,000,000.00 (which also shall evidence Borrower's obligations in
respect of the Letter of Credit, as set forth in Section 3 of this
Agreement), made and executed by Borrower and payable to Lender,
substantially in the form of Exhibit 1(a) attached hereto (said
Subordinated Master Promissory Note, as well as any and all
modifications, extensions and renewals thereof are hereinafter
collectively referred to as the "Note"; this Agreement and the Note are
hereinafter collectively referred to as the "Loan Documents").
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(b) Purpose. The proceeds of the Loan shall be used to provide
working capital to Borrower and to pay certain fees and expenses
incurred in connection with the transactions which are the subject of
the Loan Documents. The proceeds of the Loan shall not be used for any
other purpose including, without limitation, the repayment of
indebtedness of Borrower under the Company Credit Agreement (as defined
in the Merger Agreement), the Company Note Purchase and Guarantee
Agreement (as defined in the Merger Agreement), or any other
indebtedness of Borrower.
(c) Maturity Date. Subject to Section 7 of this Agreement, the
Loan, together with all accrued interest thereon and expenses incurred
by Lender in connection therewith shall be due and payable in full on
the earliest to occur of (i) August 4, 2005, (ii) the Effective Time
(as defined in the Merger Agreement), and (iii) termination of the
Merger Agreement (the "Maturity Date").
(d) Termination Fee. In the event the Merger Agreement is
terminated pursuant to Section 7.1(d) or 7.1(e) thereof, subject to
Section 7 of this Agreement, Borrower shall pay to Lender, in addition
to any other amount owing under the Merger Agreement or under the Loan
Documents, a termination fee in an amount equal to the amount of
interest that would have accrued under the Note from the date of
advance through August 5, 2005 (regardless of whether amounts
outstanding thereunder are repaid prior to such date).
2. Advances. So long as no Event of Default exists hereunder, nor any
event which with the giving of notice, passage of time or both would constitute
an Event of Default hereunder, Lender shall make advances under the Loan to
Borrower up to an aggregate principal amount of $10,000,000 at Borrower's
request pursuant to a Notice of Borrowing (as defined below) in integral
multiples of $100,000. Principal amounts advanced under the Loan and
subsequently repaid may not be reborrowed.
(a) Notices of Borrowings. Whenever Borrower desires to borrow
under the Loan, it shall deliver to Lender a Notice of Borrowing in the
form attached hereto as Exhibit 2(a)(i) (a "Notice of Borrowing") no
later than 11:00 a.m. (Central time) at least five (5) business days in
advance of the proposed date on which the funding of a borrowing made
under this Agreement occurs. The Notice of Borrowing shall specify (i)
the proposed funding date (which shall be a business day), and (ii) the
amount of the proposed borrowing.
(b) Disbursement of Funds. Lender shall make the proceeds
requested in each Notice of Borrowing available to Borrower on the
funding date specified therein by causing the amount of the requested
advance in immediately available (same day) funds to be credited to the
account of Borrower at such office as Borrower may indicate in the
Borrowing Notice.
(c) Effect of Request for Advance. Each request by Borrower
for an advance of proceeds of the Loan shall constitute an affirmation
by Borrower that the representations and warranties in Section 4 of
this Agreement remain true and correct on
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and as of the date of such request.
3. The Letter of Credit. Subject to Section 7 of this Agreement,
Borrower shall pay to Lender the full amount of (a) any and all fees, interest
or other charges incurred by Lender in connection with the Letter of Credit and
(b) any and all draws made under the Letter of Credit. The obligations of
Borrower to pay Lender for such amounts shall be evidenced by the Note, and such
amounts shall be deemed to be advances under the Note immediately upon
incurrence of any such fees, interest or other charges or such draws under the
Letter of Credit.
4. Representations and Warranties. Borrower hereby represents and
warrants to Lender as follows:
(a) Authority; Enforceability; No Conflict. Borrower has the
requisite corporate power and authority to execute and deliver this
Agreement and the other Loan Documents, and to issue the Note and to
carry out its obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement and the other Loan
Documents, the issuance of the Note by Borrower and the consummation of
the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of Borrower. The Loan Documents
have each been, duly and validly executed and delivered by Borrower
and, assuming in the case of this Loan Agreement due and valid
authorization, execution and delivery thereof by Lender, each
constitutes a valid and legally binding obligation of Borrower,
enforceable against Borrower in accordance with its terms. The
execution and delivery of the Loan Documents does not, and the
consummation by Borrower of the transactions contemplated hereby and
thereby will not, conflict with or result in a breach of any provisions
of Borrower's charter, bylaws and Borrower's other organizational and
governance documents. The execution and delivery of the Loan Documents
do not, and the consummation by Borrower of the transactions
contemplated hereby and thereby will not violate, or conflict with, or
result in a breach of any provision of, or constitute a default (or an
event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or in a right of
termination or cancellation of, or accelerate the performance required
by, or result in the creation of any lien upon any of the properties of
Borrower under, or result in being declared void, voidable or without
further binding effect, any of the terms, conditions or provisions of
(a) any note, bond, mortgage, indenture or deed of trust or (b) any
license, franchise, permit, lease, contract, agreement or other
instrument, commitment or obligation to which Borrower is a party, or
by which Borrower or any of its properties is bound. The execution and
delivery of the Loan Documents do not, and the consummation by Borrower
of the transactions contemplated hereby and thereby will not require
any consent, approval or authorization of, or declaration, filing
(except as may be required to satisfy disclosure requirements of The
U.S. Securities and Exchange Commission or the rules and regulations of
any stock exchange or quotation system on which Borrower's securities
are listed) or registration with, any governmental or regulatory
authority.
(b) Representations and Warranties in Lender Agreements.
Borrower represents and warrants that the representations and
warranties of Borrower contained
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herein, in the other Loan Documents, the Merger Agreement and all other
documents related to the Merger (collectively, the "Merger Documents")
are true and correct.
5. Covenants and Agreements. Borrower covenants and agrees during the
term of this Agreement as follows:
(a) Compliance with Merger Agreement Covenants and Conditions.
Borrower shall comply in all respects with Sections 4.1 and 4.2 of the
Merger Agreement.
(b) Payment of Obligations. Borrower shall pay the
indebtedness evidenced by the Note according to the tenor thereof, and
shall timely pay or perform, as the case may be, all of its other
obligations to Lender.
(c) Taxes. Borrower shall file all required federal, state and
local tax returns and pay all taxes as shown on such returns as they
become due, and shall pay all other taxes, fees or other charges
imposed on it prior to delinquency.
(d) Corporate Existence. Borrower shall maintain its corporate
existence in good standing in the state of its incorporation and its
qualification in good standing as a foreign corporation in any
jurisdiction in which such qualification is necessary pursuant to
applicable law, except where the failure to be so qualified would not
reasonably be expected to have a Company Material Adverse Effect (as
such term is defined in the Merger Agreement).
(e) Notice of Default. Borrower shall give written notice to
Lender of the occurrence of any Event of Default under this Agreement
or any default under any other Loan Documents or any Merger Documents
promptly upon the occurrence thereof.
(f) Notice of Litigation. Borrower shall give notice in
writing to Lender of any action, suit or proceeding commenced after the
date of this Agreement wherein the amount in issue is in excess of
$5,000,000 instituted by any persons whomsoever against Borrower or any
dispute between Borrower on the one hand and any governmental
regulatory body on the other hand in which dispute might interfere with
the normal operations of Borrower.
6. Default and Remedies.
(a) Events of Default. The occurrence of any of the following
shall constitute an Event of Default hereunder:
(i) Default in the payment of principal or interest
on the indebtedness evidenced by the Note, or default in the
payment of any cost or fee due under any Loan Document, within
three (3) business days after the date such payment is due;
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(ii) Any misrepresentation by Borrower as to any
matter hereunder or under any of the other Loan Documents or
delivery of any statement, notice or writing to Lender that is
untrue in any material respect;
(iii) Failure of Borrower to perform any material
covenant, condition or agreement under the Loan Documents or
the Merger Documents, which failure is not cured within ten
(10) days after the earlier of notice from Lender or discovery
or knowledge thereof by Borrower;
(iv) There shall occur any acceleration of the
maturity of the obligations of Borrower under the Company
Credit Agreement or the Company Note Purchase and Guarantee
Agreement or such obligations shall not be paid at their
stated maturity;
(v) Any event of default shall occur under any of the
Loan Documents or the Merger Documents;
(vi) Borrower shall (1) generally not pay or shall be
unable to pay its debts as such debts become due; or (2) shall
make an assignment for the benefit of creditors or petition or
apply to any tribunal for the appointment of a custodian,
receiver or trustee for it or a substantial part of its
assets; or (3) shall commence any proceedings under any
bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction,
whether now or hereafter in effect; or (4) shall have had any
such petition or application filed or any such proceeding
commenced against it in which an order for relief is entered
or an adjudication or appointment is made which shall remain
undismissed or unstayed for a period of more than forty-five
(45) days; or (5) shall indicate by any act or omission, its
consent to, approval of or acquiescence in any such petition,
application, proceeding or order for relief or the appointment
of a custodian, receiver or trustee for it or a substantial
part of its assets; or (6) shall suffer any such
custodianship, receivership or trusteeship to continue
undischarged for a period of forty-five (45) days or more; or
(vii) Borrower shall be liquidated, dissolved,
partitioned or terminated or the charter or certificate of
authority shall expire or be revoked.
(b) Remedies. Subject to Section 7 of this Agreement, upon the
occurrence of an Event of Default described in Subsection 6(vi) hereof,
the indebtedness evidenced by the Note shall be immediately due and
payable in full; and subject to Section 7 of this Agreement, upon the
occurrence of any other Event of Default described above, Lender at any
time thereafter may, at its option, accelerate the maturity of the
indebtedness evidenced by the Note, all without notice of any kind.
Upon the occurrence of such Event of Default and the acceleration of
the maturity of the indebtedness evidenced by the Note, subject to
Section 7 of this Agreement, Lender shall have all rights and remedies
that Lender may now or hereafter possess at law, in equity or by
statute.
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(c) Borrower and Lender agree that an Event of Default
hereunder shall constitute an Event of Default under the Senior
Indebtedness and that if the Subordinated Indebtedness has matured or
is due and payable it shall likewise constitute an Event of Default
under the Senior Indebtedness and, in either case, the holders of the
Senior Indebtedness shall have the right to exercise all rights or
remedies under the Company Credit Agreement (and related documents) and
the Company Note Purchase and Guarantee Agreement (and related
documents) in the same manner as in the case of any other Event of
Default thereunder.
7. Subordination. Notwithstanding anything contained herein to the
contrary, the obligations and indebtedness of Borrower to Lender in respect of
the Loan and the Letter of Credit or otherwise arising under or in connection
with the Loan Documents (collectively, the "Subordinated Indebtedness") shall be
subordinate in right of payment to the obligations and indebtedness of Borrower
in respect of the Company Credit Agreement and the Company Note Purchase and
Guarantee Agreement as each may be amended, modified, restated or supplemented
after the date hereof, or otherwise arising under or in connection with any
documents executed in connection therewith (collectively, the "Senior
Indebtedness") to the following extent:
(a) Payments. Borrower shall make no payments in respect of
the Subordinated Indebtedness, and Lender shall receive no payments
with respect to the Subordinated Indebtedness, until such time as the
Senior Indebtedness shall have been indefeasibly paid in full, in cash.
Lender shall not take or receive from Borrower, directly or indirectly,
in cash or other property or by setoff or in any other manner, any
payment of all or any part of the Subordinated Indebtedness.
(b) Bankruptcy, Etc. In the event of any payment or
distribution of property or securities to creditors of the Borrower in
a liquidation or dissolution thereof or in a bankruptcy, insolvency,
reorganization, receivership or similar case or proceeding involving
the Borrower or any property thereof, or pursuant to any assignment for
the benefit of creditors of the Borrower or any marshaling of any
assets thereof (a "Proceeding"):
(i) the holders of the Senior Indebtedness shall be
entitled to receive full payment thereof (including any
interest accruing after the commencement of any such case or
proceeding at the interest rate applicable thereto pursuant to
the terms of the Senior Indebtedness, regardless of whether a
claim for such interest would be allowed in such case or
proceeding) in cash before Lender shall be entitled to receive
any payment in respect of such Subordinated Indebtedness; and
(ii) until all of the Senior Indebtedness has been
paid in full in cash, any payment or distribution to which
holders of Subordinated Indebtedness would be entitled shall
be made to the holders of the Senior Indebtedness, and the
holders of the Senior Indebtedness shall have the right to
collect, receive and retain same.
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(c) Standstill. Lender may not take any action (including but
not limited to accelerating the Subordinated Indebtedness and/or
instituting a civil action to collect the Subordinated Indebtedness
and/or invoking or causing any other person to invoke a Proceeding by
or against Borrower) until after the termination of a standstill period
commencing on the date on which Lender gives written notice to the
holders of the Senior Indebtedness that an Event of Default has
occurred and ending upon the first to occur of:
(A) the day that is two hundred and seventy (270)
days after the date of such written notice,
(B) the institution of any case or proceeding
described in Subparagraph 7(b) by or against the Borrower, in
which case, the Lender shall be subject to the terms of
Section 8 below, or
(C) full and final payment in cash of the Senior
Indebtedness;
provided, however, such standstill period shall not terminate and
Lender shall take no action referred to in this Section 7(c) if any of
the holders of the Senior Indebtedness are then pursuing their rights
and remedies against Borrower or any of its subsidiaries or otherwise
taking any enforcement action in respect of the Senior Indebtedness or
any portion thereof with reasonable diligence.
(d) Receipt of Payments. If Lender receives any payment or
distribution in respect of the Subordinated Indebtedness at a time when
such payment or distribution is prohibited hereunder, Lender shall hold
such payment or distribution in trust for the benefit of the holders of
the Senior Indebtedness and forthwith shall pay the same to such
holders to the extent necessary to pay the Senior Indebtedness in full
(after giving effect to any concurrent payment or distribution to the
holders of the Senior Indebtedness). To the extent of any amounts so
paid to holders of the Senior Indebtedness by or on behalf of Lender,
Lender will be subrogated to the rights of such holders of the Senior
Indebtedness; provided, however, that Lender may not enforce such
subrogation rights until the Senior Indebtedness have been fully and
finally paid.
(e) Non-Interference by Lender. Until such time as Lender is
permitted to take any action pursuant to Section 7(c), Lender shall not
institute any proceeding or take any action against or affecting the
holders of the Senior Indebtedness which, directly or indirectly, would
interfere with or delay the exercise of such holders' rights and
remedies under or in respect of the Company Note Purchase and Guarantee
Agreement or the Company Credit Agreement, as the case may be.
8. Voting of Claims in Bankruptcy, Etc. If Lender is deemed to be a
creditor of Borrower in any Proceeding (i) Lender hereby agrees that it shall
not make any election, give any consent, commence any action or file any motion,
claim, obligation, notice or application or take any other action in any
Proceeding by or against Borrower without the prior written consent of the
Required Holders and the Required Lenders (except that Lender may file a proof
of claim
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in respect of the Subordinated Indebtedness without such consent), (ii) the
holders of the Senior Indebtedness may vote (pursuant to the instructions of the
Required Lenders and the Required Holders) in any such Proceeding any and all
claims of Lender, and Lender hereby appoints the holders of the Senior
Indebtedness as its agent, and grants to the holders of the Senior Indebtedness
an irrevocable power of attorney coupled with an interest, and its proxy, for
the purpose of exercising any and all rights and taking any and all actions
(pursuant to the instructions of the Required Lenders and the Required Holders)
available to Lender in connection with any case by or against Borrower in any
Proceeding, including without limitation, the right to file and/or prosecute any
claims, to vote to accept or reject a plan, to make any election under Section
1111(b) of the Bankruptcy Code and making any bid on any sale of assets pursuant
to Section 363 or otherwise; provided, however, that with respect to any
proposed plan of reorganization in respect of which creditors are voting, the
holders of the Senior Indebtedness may vote on behalf of Lender only if the
proposed plan would result in the holders of the Senior Indebtedness being
"impaired" (as such term is defined in the United States Bankruptcy Code) and
(ii) Lender shall not challenge the validity or amount of any claim submitted in
such Proceeding by the holders of the Senior Indebtedness in good faith or take
any other action in such Proceeding, which is adverse to the Senior Indebtedness
holders' enforcement of their claim or receipt of adequate protection (as that
term is defined in the Bankruptcy Code).
9. No Modifications of Loan Documents; No Modification of Merger
Agreement by Borrower. Borrower and Lender each agree that, until the principal
of, interest on and all other amounts payable under the Senior Indebtedness has
been paid in full, it will not, without the prior written consent of each of (i)
the Required Lenders (as that term is defined in the Company Credit Agreement)
and (ii) the Required Holders (as that term is defined in the Company Note
Purchase and Guarantee Agreement), (a) amend, modify, increase, extend, renew or
replace the Loan Documents or (b) assign any interest in the Subordinated
Indebtedness unless the Assignee is an Affiliate (as defined in the Company
Credit Agreement) of Lender and agrees in writing to be bound by the provisions
of Section 7 hereof. Any amendment of the Loan Documents or assignment of the
Lender's interest in the Subordinated Indebtedness without the consent of the
holders of the Senior Indebtedness as required hereunder shall be void ab initio
and of no effect whatsoever. Borrower agrees that it will not amend the Merger
Agreement or enter into any agreement to terminate or which could result in the
termination of the Merger Agreement without the consent of the Required Lenders
and Required Holders.
10. Third Party Beneficiaries. Borrower and Lender each agree that the
holders of the Senior Indebtedness are, and shall have the rights conferred upon
them hereunder as, intended third party beneficiaries of this Agreement
(including without limitation, Sections 7, 8 and 9 hereof) and such holders
shall be entitled to enforce this Agreement directly against the parties hereto.
Borrower and Lender each agree that the holders of the Senior Indebtedness are
relying on the rights conferred upon them hereby in consideration for the
granting by the holders of the Senior Indebtedness of a waiver and/or a
forbearance under each of the Company Credit Agreement and the Company Note
Purchase and Guarantee Agreement to permit Borrower to incur the Subordinated
Indebtedness hereunder and/or to address certain other matters.
11. Lender consents to any lawful action taken by or on behalf of the
holders of the
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Senior Indebtedness in the exercise of their rights and remedies under the
documents delivered in connection with the Senior Indebtedness and agrees that
it shall not have any right to contest any such action or assert any defenses or
claims in connection therewith. Lender shall not contest or challenge the
validity, perfection, priority or enforceability of any lien or security
interest granted to the holders or on behalf of the holders of the Senior
Indebtedness.
12. Miscellaneous.
(a) Performance by Lender. If Borrower shall default in the
payment, performance or observance of any covenant, term or condition
of this Agreement, Lender may, at its option, pay, perform or observe
the same and all payments made or costs or expenses incurred by Lender
in connection therewith, with interest thereon at the default rate
provided in the Note, shall be immediately repaid to Lender by
Borrower.
(b) Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of Borrower or by or on
behalf of Lender shall bind and inure to the benefit of their
respective successors-in-title and assigns.
(c) Costs and Expenses. Borrower shall pay any and all costs
and expenses incurred in connection with the making, administration,
servicing and collection of the Loan, promptly upon demand of Lender.
(d) Severability. If any provision of this Agreement shall be
invalid or unenforceable, the remainder of this Agreement shall not be
affected and shall be enforced to the greatest extent permitted by law.
(e) Notices. Any notices permitted or required to be made
hereunder shall be made in accordance with Section 8.5 of the Merger
Agreement. Any notices permitted or required to be made hereunder to
holders of the Senior Indebtedness shall be made in accordance with
Section 8.5 of the Merger Agreement to:
Citibank, N.A., as agent under the Company Credit Agreement
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000 0000
Noteholders under the Company Note Purchase and Guarantee
Agreement, in accordance with Section 18 thereof.
(f) Miscellaneous. This Agreement shall be construed and
enforced under the laws of the State of Delaware. No amendment or
modification hereof shall be effective except in a writing executed by
the parties hereto.
[The remainder of this page intentionally left blank.
Signatures on following page(s).]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BORROWER: RESORTQUEST INTERNATIONAL, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: Vice President
-----------------------------
LENDER: XXXXXXX ENTERTAINMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Title: Executive Vice President and
Chief Financial Officer
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EXHIBIT 1(a)
SUBORDINATED
MASTER PROMISSORY NOTE
$15,000,000.00 September 8, 2003
FOR VALUE RECEIVED, on or before the Maturity Date (as defined in the
hereinafter described Loan Agreement), the undersigned, RESORTQUEST
INTERNATIONAL, INC., a Delaware corporation ("Maker"), promises to pay to the
order of Xxxxxxx Entertainment Company ("Payee"; Payee and any subsequent
holder[s] hereof are sometimes herein referred to individually and collectively
as "Holder"), the principal sum of FIFTEEN MILLION AND NO/100THS DOLLARS
($15,000,000.00) or, if less, the aggregate unpaid principal amount of all sums
advanced here against pursuant to that certain Subordinated Loan and
Reimbursement Agreement dated September 8, 2003, by and among Maker and Payee
(as the same heretofore may have been and/or hereafter may be amended, restated,
supplemented, extended, renewed, replaced or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Loan Agreement), together with
interest on the aggregate unpaid principal balance outstanding from time to time
at the rate of ten and one-half percent (10.5%) per annum (computed on the basis
of a 360-day year consisting of twelve (12) 30-day months, to the extent
permitted by applicable law); provided that in no event shall the interest and
loan charges payable in respect of the indebtedness evidenced hereby exceed the
maximum amounts from time to time allowed to be collected under applicable law
(the "Maximum Rate").
The entire outstanding principal balance, together with all accrued and
unpaid interest, shall be immediately due and payable in full on the Maturity
Date.
All payments in respect of the indebtedness evidenced hereby shall be
made in collected funds, and shall be applied to principal, accrued interest and
charges and expenses owing under or in connection with this Note in such order
as Holder elects, except that payments shall be applied to accrued interest
before principal.
The obligations and indebtedness of Borrower to Lender represented
hereby are subordinate in right of payment to the obligations and indebtedness
of Borrower in respect of the Senior Indebtedness. The terms of this Note are
subject to the terms of the Loan Agreement, which terms are incorporated herein
by reference.
Any advance by Holder to Maker that is not evidenced by another
instrument or agreement between the parties shall be conclusively presumed to
have been made hereunder when such advance is made in accordance with the
written instructions of Maker. The entire balance of all advances hereunder that
may be outstanding from time to time shall constitute a single indebtedness, and
no single advance increasing the outstanding balance hereof shall itself be
considered a separate loan, but rather an increase in the aggregate outstanding
balance of the indebtedness evidenced hereby.
The indebtedness evidenced hereby may be prepaid in whole or in part,
at any time and from time to time, without premium or penalty.
It is hereby expressly agreed that in the event that any default be
made in the payment of principal or interest when due as stipulated above; or
upon the occurrence of an Event of Default (as defined in the Loan Agreement);
then, and in such event, the entire outstanding principal balance of the
indebtedness evidenced hereby, together with any other sums advanced hereunder
or under any other instrument or document now or hereafter evidencing, securing
or in any way relating to the indebtedness evidenced hereby, together with all
unpaid interest accrued thereon, shall, at the option of Holder and without
notice to Maker, at once become due and payable and, subject to the provisions
of Section 7 of the Loan Agreement, may be collected forthwith, regardless of
the stipulated date of maturity. Upon the occurrence of any Event of Default and
the acceleration of the maturity of the indebtedness evidenced hereby, at the
option of Holder and without notice to Maker, all accrued and unpaid interest,
if any, shall be added to the outstanding principal balance hereof, and the
entire outstanding principal balance, as so adjusted, shall bear interest
thereafter until paid at an annual rate (the "Default Rate") equal to the lesser
of (i) fourteen percent (14%) per annum, or (ii) the Maximum Rate, regardless of
whether there has been an acceleration of the payment of principal as set forth
herein. All such interest shall be paid at the time of and as a condition
precedent to the curing of any such default.
To the extent permitted by applicable law, Maker shall pay to Holder a
late charge equal to five percent (5%) of any payment hereunder that is not
received by Holder within ten (10) days of the date on which it is due, in order
to cover the additional expenses incident to the handling and processing of
delinquent payments; provided, however, that no late charge will be imposed on
any payment made on time and in full solely by reason of any previously accrued
and unpaid late charge; and provided further that nothing in this paragraph
shall be deemed to waive any other right or remedy of Holder by reason of
Maker's failure to make payments when due hereunder.
In the event this Note is placed in the hands of an attorney for
collection, or if Holder incurs any costs incident to the collection of the
indebtedness evidenced hereby, Maker and any indorsers hereof agree to pay a
reasonable attorney's fee, all court and other costs, and the reasonable costs
of any other collection efforts.
Presentment for payment, demand, protest and notice of demand, protest
and nonpayment are hereby waived by Maker and all other parties hereto. No
failure to accelerate the indebtedness evidenced hereby by reason of default
hereunder, acceptance of a past-due installment or other indulgences granted
from time to time, shall be construed as a novation of this Note or as a waiver
of such right of acceleration or of the right of Holder thereafter to insist
upon strict compliance with the terms of this Note or to prevent the exercise of
such right of acceleration or any other right granted hereunder or by applicable
laws. Unless otherwise specifically agreed by Holder in writing, the liability
of Maker and all other persons now or hereafter liable for payment of the
indebtedness evidenced hereby, or any portion thereof, shall not be affected by
(1) any renewal hereof or other extension of the time for payment of the
indebtedness evidenced hereby or any amount due in respect thereof, or (2) the
release of or
resort to any person now or hereafter liable for payment of the indebtedness
evidenced hereby or any portion thereof. This Note may not be changed orally,
but only by an agreement in writing signed by the party against whom enforcement
of any waiver, change, modification or discharge is sought.
All agreements herein made are expressly limited so that in no event
whatsoever, whether by reason of advancement of proceeds hereof, acceleration of
maturity of the unpaid balance hereof or otherwise, shall the interest and loan
charges agreed to be paid to Holder for the use of the money advanced or to be
advanced hereunder exceed the maximum amounts collectible under applicable laws
in effect from time to time. If for any reason whatsoever the interest or loan
charges paid or contracted to be paid in respect of the indebtedness evidenced
hereby shall exceed the maximum amounts collectible under applicable laws in
effect from time to time, then, ipso facto, the obligation to pay such interest
and/or loan charges shall be reduced to the maximum amounts collectible under
applicable laws in effect from time to time, and any amounts collected by Holder
that exceed such maximum amounts shall be applied to the reduction of the
principal balance remaining unpaid hereunder and/or refunded to Maker so that at
no time shall the interest or loan charges paid or payable in respect of the
indebtedness evidenced hereby exceed the maximum amounts permitted from time to
time by applicable law. This provision shall control every other provision in
any and all other agreements and instruments now existing or hereafter arising
between Maker and Holder with respect to the indebtedness evidenced hereby.
This Note is intended as a contract under and shall be construed and
enforceable in accordance with the laws of the State of Delaware, except to the
extent that Federal law may govern the Maximum Rate.
As used herein, the terms "Maker" and "Holder" shall be deemed to
include their respective successors, legal representatives and assigns, whether
by voluntary action of the parties or by operation of law. In the event that
more than one person, firm or entity is a maker hereunder, then all references
to "Maker" shall be deemed to refer equally to each of said persons, firms or
entities, all of whom shall be jointly and severally liable for all of the
obligations of Maker hereunder.
IN WITNESS WHEREOF, the undersigned Maker has caused this Note to be
executed by its duly authorized officer as of the date first above written.
MAKER:
RESORTQUEST INTERNATIONAL, INC.
By:
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Title:
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EXHIBIT 2(a)(i)
[FORM OF NOTICE OF BORROWING]
[Date]
Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx XX 00000
Attn: Xxxxx X. Xxxxxxxx
Facsimile No. (000) 000-0000
Ladies and Gentlemen:
Pursuant to that certain Subordinated Loan and Reimbursement Agreement
dated September 8, 2003, among ResortQuest International, Inc., a Delaware
corporation (the "Borrower") and Xxxxxxx Entertainment Company (the "Lender")
(as the same heretofore may have been and/or hereafter may be amended, restated,
supplemented, extended, renewed, replaced or otherwise modified from time to
time, the "Loan Agreement"; capitalized terms used but not defined herein shall
have the meanings assigned thereto in the Loan Agreement), notice is hereby
given of Borrower's request to borrow on [____________, 200__] from Lender under
the Loan Agreement a loan in the amount of $____________, to be deposited in
Borrower's account #__________________ maintained with ________________________.
The undersigned officer of Borrower hereby certifies that on and as of
the date of this Notice that after giving effect to the above described advance,
the sum of the aggregate outstanding amount of the Loan will be
$_____________________.
The undersigned officer of Borrower hereby further certifies that (1)
the foregoing advance is permitted by, complies with all requirements of and
will not violate any provisions of the Loan Agreement, and (2) all of the
conditions of the Loan Agreement to the making of the foregoing advance have
been satisfied.
The undersigned officer of Borrower hereby affirms that the
representations and warranties in Section 4 of the Loan Agreement remain true
and correct on and as of the date hereof.
RESORTQUEST INTERNATIONAL, INC.
By:
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Title:
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