SECOND LOAN MODIFICATION AGREEMENT
This SECOND LOAN MODIFICATION AGREEMENT (the "Second Modification
Agreement") is made, entered into and effective as of the 29th day of December,
2000, by and among CR Resorts Cancun, S. de X.X. de C.V., a Mexican limited
responsibility corporation with variable capital ("CR Cancun"), CR Resorts Los
Cabos, S. de X.X. de C.V., a Mexican limited responsibility corporation with
variable capital ("CR Cabos"), CR Resorts Puerto Vallarta, S. de X.X. de C.V., a
Mexican limited responsibility corporation with variable capital ("CR Puerto
Vallarta"), Corporacion Mexitur, S. de X.X. de C.V., a Mexican limited
responsibility corporation with variable capital ("Mexitur"), CR Resorts Cancun
Timeshare Trust, S. de X.X. de C.V., a Mexican limited responsibility
corporation with variable capital, CR Resorts Cabos Timeshare Trust, S. de X.X.
de C.V., a Mexican limited responsibility corporation with variable capital, CR
Resorts Puerto Vallarta Timeshare Trust S. de X.X. de C.V. a Mexican limited
responsibility corporation with variable capital, XXXXX XXXX RESORT, S. DE X.X.
DE C.V., a Mexican limited responsibility corporation with variable capital
("Xxxxx Xxxx") and PROMOTORA XXXXX XXXX, S. DE X.X. DE C.V., a Mexican limited
responsibility corporation with variable capital ("Promotora") (collectively,
jointly and severally, the "Borrower"); Raintree Resorts International, Inc., a
Nevada corporation ("Guarantor"), and TEXTRON FINANCIAL CORPORATION, a Delaware
corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Borrower (with the exception of Xxxxx Xxxx and Promotora), the
Guarantor, and Lender are parties to that certain Loan and Security Agreement
dated as of November 23, 1999 (the "Loan Agreement") and to that certain Loan
Modification Agreement dated as of November 20, 2000 (the "First Modification
Agreement"), pursuant to which Lender agreed to make a loan to Borrower in the
maximum principal amount at any time of US$13,000,000, to be guaranteed by the
Guarantor, all pursuant to the terms, provisions, and conditions set forth in
the Loan Agreement, the First Modification Agreement, and the other Loan
Documents, as such term is defined in the Loan Agreement (the "Loan"); and
WHEREAS, the Loan consists of a note receivable component in the original
principal amount of up to US$13,000,000; and
WHEREAS, Borrower, the Guarantor, and Lender desire to increase the
maximum amount of the Loan by US$5,000,000, to add Xxxxx Xxxx and Promotora as
Borrowers under the Loan, to incorporate a second tranche to the Loan, to extend
the Revolving Credit Period, to extend the existing maturity date of the Loan,
and otherwise amend the terms, provisions, and conditions of the Loan Agreement
in the manner permitted by Section 12.7 thereof.
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NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. Except as otherwise provided herein to the contrary or
unless the context otherwise requires, all capitalized terms used in this Second
Modification Agreement shall have the meanings ascribed to them in the Loan
Agreement, as modified pursuant to the terms of the First Modification
Agreement.
2. Second Modification Closing Date. For purposes of this Second
Modification Agreement, "Second Modification Closing Date" shall mean the
effective date of this Second Modification Agreement.
3. Second Modification Commitment Fee. In addition to the Commitment Fee
described in Section 1.1(o) of the Loan Agreement and the Modification
Commitment Fee described in Section 3 of the First Modification Agreement,
Borrower shall pay Lender an amount (the "Second Modification Commitment Fee")
equal to one and one-half percent (1.5%) of the difference between the previous
maximum Loan amount of US$13,000,000 and the modified maximum Loan amount of
US$18,000,000, or US$75,000. The entire Second Modification Commitment Fee has
been earned as of the Second Modification Closing Date and shall be payable to
Lender, in immediately available funds, on the Second Modification Closing Date.
4. Borrowing Base. Section 1.1(h) of the Loan Agreement and Section 4 of
the First Modification Agreement are hereby deleted in their entirety and
replaced by the following:
(h) Borrowing Base. (i) with respect to Eligible Notes Receivable
pledged to Lender in connection with each Advance under Tranche A
of the Loan for which at least one monthly payment has been made,
an amount equal to the sum of (a) fifty percent (50%) of the
aggregate outstanding principal balance of each UDI-denominated
Eligible Note Receivable, plus (b) eighty percent (80%) of the
aggregate outstanding principal balance of each Mexican Nuevo
Peso-denominated Eligible Note Receivable, plus (c) eighty-five
percent (85%) of the aggregate remaining principal balance of
each U.S. Dollar denominated Eligible Note Receivable, and (ii)
with respect to Eligible Notes Receivable pledged to Lender in
connection with each Advance under Tranche B of the Loan for
which at least one monthly payment has been made, an amount equal
to the sum of (a) eighty percent (80%) of the aggregate
outstanding principal balance of each Mexican Nuevo
Peso-denominated Eligible Note Receivable, plus (b) eighty
percent (80%) of the aggregate remaining principal balance of
each U.S. Dollar denominated Eligible Note Receivable.
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5. Eligible Notes Receivable. Section 1.1(z) of the Loan Agreement and
Section 6 of the First Modification Agreement are hereby deleted in their
entirety and replaced with the following:
(z) Eligible Notes Receivable. Those Pledged Notes Receivable which
satisfy each of the following criteria:
(a) With respect to Tranche A of the Loan:
(i) one or more of the entities constituting the Borrower is
the sole payee;
(ii) it arises from a bona fide sale by Borrower of one (1)
or more Intervals in one of the Resorts;
(iii) the Interval sale from which it arises has not been
canceled by the Purchaser, any statutory or other applicable
cancellation or rescission period has expired and the Interval
sale is otherwise in total compliance with the terms and
provisions of this Agreement and all of the other Loan Documents;
(iv) it is secured by a properly executed Assignment of
Pledged Notes Receivable and a properly executed Interval Lease
Contract;
(v) principal and interest payments on it are payable to the
Borrower in legal tender of the United States, provided, however,
that (a) up to forty-six percent (46%) by number of all Eligible
Notes Receivable may be payable in either Mexican Nuevos Pesos or
Mexican UDIs, and (b) up to US$3,000,000 of the aggregate
outstanding principal balance of all Eligible Notes Receivable
may, at any time, be comprised of Notes Receivable payable in
Mexican UDIs;
(vi) payments of principal and interest on it are due in
equal monthly installments (or in such other amounts to cover
principal and interest);
(vii) it shall have an original term of no more than sixty
(60) months; provided, however, that up to twenty-five percent
(25%) of the aggregate outstanding balance of all Eligible Notes
Receivable may, at any time, be comprised of Notes Receivable
having an original term of no more than eighty-four (84) months;
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(viii) a cash down payment and/or other cash payments have
been received from the Purchaser in an amount equal to at least
fifteen percent (15%) of the original purchase price of the
related Interval, and the Purchaser thereafter shall have
received no cash or other rebates of any kind which would cause
the down payment to be less than fifteen percent (15%) of the
total purchase price;
(ix) no monthly installment due with respect to the Pledged
Note Receivable is more than thirty (30) days contractually past
due as of the date of funding of the first Advance with respect
to such Pledged Note Receivable, or more than sixty (60) days
contractually past due thereafter;
(x) the weighted average interest rate of all Eligible Notes
Receivable payable in legal tender of the United States at any
time shall be not less than twelve percent (12.0%) per annum;
(xi) the weighted average interest rate of all Eligible
Notes Receivable payable in both Mexican Nuevos Pesos and Mexican
UDIs at any time shall be not less than eighteen percent (18.0%)
per annum;
(xii) the Purchaser of the related Interval has immediate
access to a Unit of the type specified in such Purchaser's
Interval Lease Contract, which Interval and related Unit have
been completed, developed and furnished in accordance with the
specifications provided in the Purchaser's Interval Lease
Contract, the public offering statement (if any) and the other
Timeshare Documents; and the Purchaser has, subject to the terms
of the Declaration, Interval Lease Contract and other Timeshare
Documents, complete and unrestricted access to the related
Interval, Unit, Facilities and the Resorts;
(xiii) neither the Purchaser of the related Interval nor any
other maker of the Note Receivable is an Affiliate of, personally
related to or employed by Borrower;
(xiv) the Purchaser or other obligor has no claim against
Borrower or any Affiliate of Borrower, and no defense, set-off or
counterclaim exists with respect to the Note Receivable;
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(xv) the maximum outstanding principal balance of such Note
Receivable does not exceed US$25,000.00 (or the equivalent in
Mexican Nuevos Pesos or Mexican UDIs at the time of the Advance
with respect to such Note Receivable), and total principal
balance of all Notes Receivable executed by any one (1) obligor
will not exceed US$25,000.00 (or the equivalent in Mexican Nuevos
Pesos or Mexican UDIs at the time of the Advance with respect to
such Note Receivable), without the prior written approval of
Lender;
(xvi) the Note Receivable is executed by a Mexican resident;
(xvii) the original of the Note Receivable and all related
consumer documents have been endorsed in the manner prescribed by
Lender and delivered to Lender or its approved agent (the
"Agent") as provided in this Agreement, and the terms thereof and
all instruments related thereto shall comply in all respects with
all applicable federal and state statutes, ordinances, rules and
regulations;
(xviii) the Unit in which the Interval being financed by the
Note Receivable is located shall not be subject to any Lien which
has not previously been consented to in writing by Lender other
than the Permitted FINOVA Liens;
(xix) the form of promissory note, federal truth-in-lending
disclosure statement, if any, or other applicable disclosure,
purchase contract and all other documents and instruments
corresponding to the Interval purchase transaction giving rise to
such Note Receivable has been approved in advance by Lender in
writing;
(xx) the Purchaser (a) is entitled to fifty (50) consecutive
years of use (commencing in 1997) in a specific Unit type during
a specified season at one of the four locations of the Resorts
each year expiring in the year 2047, which right shall be
exercised for a seven (7) day period each year for such fifty
(50) year term, or (b) is entitled to twenty-five (25) biennual
years of use (commencing in 1997) in a specific Unit type during
a specified season at one of the four locations of the Resorts
expiring in the year 2047, which shall be exercised for a seven
(7) day period every alternate year for such term;
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(xxi) the Purchaser may not accelerate their usage in the
Resorts (provided, however, that certain Purchasers may
accelerate their usage by a maximum of one (1) week per year,
provided that such Purchasers pay all additional maintenance fees
and any and all other fees related to such accelerated usage);
(xxii) the Note Receivable is originated in connection with
an Interval Lease Contract and Borrower has provided and/or
caused all interest or lienholders which have mortgages
encumbering the Resorts or other agreements or amendments to
their respective security documents which expressly state to
Lender's satisfaction that such interest or lienholder may not
disturb the use rights of any Purchaser pursuant to such
Purchaser's Interval Lease Contract for so long as Purchaser is
not in default pursuant to the terms of such Interval Lease
Contract;
(xxiii) Lender is in possession of the executed original
Notes Receivable endorsed by Borrower to Lender, along with the
executed original Interval Lease Contracts corresponding to such
Notes Receivable;
(xxiv) the Note Receivable is originated in connection with
a related Interval Lease Contract whereby Land Trustee under a
Mexican guaranty trust satisfactory to Lender holds legal title
to each of the Resorts on behalf of CR Cabos, CR Cancun, or CR
Puerto Vallarta, together with CR Remainder (as to the remainder
interest in each of the Resorts commencing under the FINOVA
Mortgages in the year 2047) and whereby non-disturbance
provisions for the continued use and enjoyment by the Interval
Purchasers of the Resorts and Facilities are in a form and
substance acceptable to Lender; and
(xxv) any and all release payments required under the
inventory component of the FINOVA Loan pertaining to the Interval
related to such Note Receivable, specifically including the
"Interval Sales Payment" as such term is defined in the FINOVA
Loan Agreement, have been paid in full by Borrower.
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(b) With respect to Tranche B of the Loan:
(i) one or more of the entities constituting the Borrower is the
sole payee;
(ii) it arises from a bona fide sale by Borrower of one (1) or
more Intervals in one of the Resorts;
(iii) the Interval sale from which it arises has not been
canceled by the Purchaser, any statutory or other applicable
cancellation or rescission period has expired and the Interval sale is
otherwise in total compliance with the terms and provisions of this
Agreement and all of the other Loan Documents;
(iv) it is secured by a properly executed Assignment of Pledged
Notes Receivable and a properly executed Interval Lease Contract;
(v) principal and interest payments on it are payable to the
Borrower in legal tender of the United States, provided, however, that
up to fifteen percent (15%) by number of all Eligible Notes Receivable
may be payable in Mexican Nuevos Pesos;
(vi) payments of principal and interest on it are due in equal
monthly installments (or in such other amounts to cover principal and
interest);
(vii) it shall have an original term of no more than sixty (60)
months; provided, however, that up to twenty-five percent (25%) of the
aggregate outstanding balance of all Eligible Notes Receivable may, at
any time, be comprised of Notes Receivable having an original term of
no more than eighty-four (84) months;
(viii) a cash down payment and/or other cash payments have been
received from the Purchaser in an amount equal to at least fifteen
percent (15%) of the original purchase price of the related Interval,
and the Purchaser thereafter shall have received no cash or other
rebates of any kind which would cause the down payment to be less than
fifteen percent (15%) of the total purchase price;
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(ix) no monthly installment due with respect to the Pledged Note
Receivable is more than thirty (30) days contractually past due as of
the date of funding of the first Advance with respect to such Pledged
Note Receivable, or more than sixty (60) days contractually past due
thereafter;
(x) the weighted average interest rate of all Eligible Notes
Receivable payable in legal tender of the United States at any time
shall be not less than twelve percent (12.0%) per annum;
(xi) the weighted average interest rate of all Eligible Notes
Receivable payable in Mexican Nuevos Pesos at any time shall be not
less than eighteen percent (18.0%) per annum;
(xii) the Purchaser of the related Interval has immediate access
to a Unit of the type specified in such Purchaser's Interval Lease
Contract, which Interval and related Unit have been completed,
developed and furnished in accordance with the specifications provided
in the Purchaser's Interval Lease Contract, the public offering
statement (if any) and the other Timeshare Documents; and the
Purchaser has, subject to the terms of the Declaration, Interval Lease
Contract and other Timeshare Documents, complete and unrestricted
access to the related Interval, Unit, Facilities and the Resorts;
(xiii) neither the Purchaser of the related Interval nor any
other maker of the Note Receivable is an Affiliate of, personally
related to or employed by Borrower;
(xiv) the Purchaser or other obligor has no claim against
Borrower or any Affiliate of Borrower, and no defense, set-off or
counterclaim exists with respect to the Note Receivable;
(xv) the maximum outstanding principal balance of such Note
Receivable does not exceed US$25,000.00 (or the equivalent in Mexican
Nuevos Pesos at the time of the Advance with respect to such Note
Receivable), and total principal balance of all Notes Receivable
executed by any one (1) obligor will not exceed US$25,000.00 (or the
equivalent in Mexican Nuevos Pesos at the time of the Advance with
respect to such Note Receivable), without the prior written approval
of Lender;
(xvi) the Note Receivable is executed by a Mexican resident;
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(xvii) the original of the Note Receivable and all related
consumer documents have been endorsed in the manner prescribed by
Lender and delivered to Lender or its Agent as provided in this
Agreement, and the terms thereof and all instruments related thereto
shall comply in all respects with all applicable federal and state
statutes, ordinances, rules and regulations;
(xviii) the Unit in which the Interval being financed by the Note
Receivable is located shall not be subject to any Lien which has not
previously been consented to in writing by Lender other than the
Permitted FINOVA Liens;
(xix) the form of promissory note, federal truth-in-lending
disclosure statement, if any, or other applicable disclosure, purchase
contract and all other documents and instruments corresponding to the
Interval purchase transaction giving rise to such Note Receivable has
been approved in advance by Lender in writing;
(xx) the Purchaser (a) is entitled to fifty (50) consecutive
years of use (commencing in 1997) in a specific Unit type during a
specified season at one of the four locations of the Resorts each year
expiring in the year 2047, which right shall be exercised for a seven
(7) day period each year for such fifty (50) year term, or (b) is
entitled to twenty-five (25) biennual years of use (commencing in
1997) in a specific Unit type during a specified season at one of the
four locations of the Resorts expiring in the year 2047, which shall
be exercised for a seven (7) day period every alternate year for such
term;
(xxi) the Purchaser may not accelerate their usage in the Resorts
(provided, however, that certain Purchasers may accelerate their usage
by a maximum of one (1) week per year, provided that such Purchasers
pay all additional maintenance fees and any and all other fees related
to such accelerated usage);
(xxii) the Note Receivable is originated in connection with an
Interval Lease Contract and Borrower has provided and/or caused all
interest or lienholders which have mortgages encumbering the Resorts
or other agreements or amendments to their respective security
documents which expressly state to Lender's satisfaction that such
interest or lienholder may not disturb the use rights of any Purchaser
pursuant to such Purchaser's Interval Lease Contract for so long as
Purchaser is not in default pursuant to the terms of such Interval
Lease Contract;
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(xxiii) Lender is in possession of the executed original Notes
Receivable endorsed by Borrower to Lender, along with the executed
original Interval Lease Contracts corresponding to such Notes
Receivable;
(xxiv) the Note Receivable is originated in connection with a
related Interval Lease Contract whereby Land Trustee under a Mexican
guaranty trust satisfactory to Lender holds legal title to each of the
Resorts on behalf of CR Cabos, CR Cancun, CR Puerto Vallarta or Xxxxx
Xxxx, together with CR Remainder (as to the remainder interest in each
of the Resorts commencing under the FINOVA Mortgages in the year 2047)
and whereby non-disturbance provisions for the continued use and
enjoyment by the Interval Purchasers of the Resorts and Facilities are
in a form and substance acceptable to Lender; and
(xxv) any and all release payments required under the inventory
component of the FINOVA Loan pertaining to the Interval related to
such Note Receivable, specifically including the "Interval Sales
Payment" as such term is defined in the FINOVA Loan Agreement, have
been paid in full by Borrower.
6. Guaranty. Guarantor shall, concurrently with the execution and
delivery of this Second Modification Agreement, execute and deliver to Lender a
Second Amended and Restated Payment Guaranty and Subordination Agreement
(hereinafter the "Second Amended Guaranty Agreement"). Said Second Amended
Guaranty Agreement shall replace and supersede in their entirety both the
original Payment Guaranty and Subordination Agreement dated as of November 23,
1999, executed by Guarantor in favor of Lender and the Amended and Restated
Payment Guaranty and Subordination Agreement dated as of November 20, 2000,
executed by Guarantor in favor of Lender. Upon execution and delivery by
Guarantor to Lender of the Second Amended Guaranty Agreement, Lender shall
return to the Guarantor both the original Payment Guaranty and Subordination
Agreement and the Amended and Restated Payment Guaranty and Subordination
Agreement marked "Canceled and Satisfied." In accordance with the foregoing,
Section 1.1(qq) of the Loan Agreement and Section 7 of the First Modification
Agreement are hereby deleted in their entirety and replaced by the following:
(qq) Guaranty. The Second Amended and Restated Payment Guaranty
and Subordination Agreement dated as of December 29, 2000, executed by
Guarantor, and delivered to Lender concurrently with the Second
Modification Agreement. The Guaranty shall be the
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absolute and unconditional guaranty of payment and performance of the
Loan and all amounts secured by or under the Loan Documents, as more
fully set forth in this Second Modification Agreement, in the Loan
Agreement and in the First Modification Agreement.
7. Interest Rate. Section 1.1(xx) of the Loan Agreement is hereby deleted
in its entirety and replaced with the following:
(xx) Interest Rate. (i) with respect to Tranche A of the Loan, a
variable rate, adjusted as of the first day of each calendar month,
equal to the sum of the Prime Rate as of the first day of each
calendar month, plus two percent (2.00%) per annum, and (ii) with
respect to Tranche B of the Loan, a variable rate, adjusted as of the
first day of each calendar month, equal to the sum of the Prime Rate
as of the first day of each calendar month, plus two and
three-quarters percent (2.75%) per annum.
8. Loan. Section 1.1(ddd) of the Loan Agreement and Section 8 of the First
Modification Agreement are hereby deleted in their entirety and replaced by the
following:
(ddd) Loan. The Loan in the maximum aggregate amount of US$18,000,000
shall consist of the following two separate tranches, (i) the maximum
US$13,000,000.00 credit facility, as further described in the Loan
Agreement, as modified by the First Modification Agreement ("Tranche A"),
and (ii) the maximum US$5,000,000.00 credit facility provided pursuant to
the terms of this Second Modification Agreement ("Tranche B").
9. Note Receivable Promissory Note. Section 1.1(ooo) of the Loan Agreement
and Section 9 of the First Modification Agreement are hereby deleted in their
entirety and replaced by the following:
(ooo) Note Receivable Promissory Note. The Second Amended and Restated
Note Receivable Promissory Note evidencing the Loan executed and delivered
by Borrower and Guarantor to Lender concurrently with the Second
Modification Agreement.
10. Resorts. Section 1.1(hhhh) of the Loan Agreement is hereby deleted in
its entirety and replaced with the following:
(hhhh) Resorts. Collectively, the four separate timeshare projects
consisting of, among other things, the Resort Property, commonly known as
Club Xxxxxx Resort at Cancun (located in Cancun, Mexico), Club Xxxxxx
Resort at Puerto Vallarta (located in Puerto Vallarta, Mexico), Club Xxxxxx
Resort at Los Cabos (located in Los Cabos, Mexico) and Club Xxxxxx Resort
at Acapulco (located in
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Acapulco, Mexico) which presently consist of an aggregate of four hundred
thirty (430) Units, and the Intervals now existing or hereafter added in
one (1) or more phases, and all related Facilities, Common Furnishings and
other appurtenances.
11. Resort Property. Section 1.1(iiii) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
(iiii) Resort Property. Collectively, that certain real property of
approximately Ten Thousand Two Hundred Seventy-Six and Ninety-Six One
Hundredths (10,276.96) square meters located in Cancun Mexico, that certain
real property of approximately Twenty-Four Thousand Nine Hundred Thirty-Six
and Eight Hundred Nineteen One Thousandths (24,936.819) square meters
located in Puerto Vallarta, Mexico, that certain real property of
approximately Thirty-Eight Thousand Five Hundred Seventy and Nine One
Thousandths (38,570.009) square meters located in Los Cabos, Mexico, and
that certain real property of approximately Twenty-Nine Thousand Four
Hundred Fifty-Two and Seventy Hundredths (29,452.70) square meters located
in Acapulco, Mexico all as more fully described in Exhibit C, attached
hereto and incorporated herein by this reference together with all related
and appurtenant property, both real and personal, amenities, facilities,
furniture, furnishings, equipment, appliances, fixtures, easements,
licenses, rights and interests as established by and more fully described
in the Declaration and the other Timeshare Documents, as the same may be
amended from time to time.
12. Term. Section 1.1(tttt) of the Loan Agreement and Section 10 of
the First Modification Agreement are hereby deleted in their entirety and
replaced by the following:
(tttt) Term. A period of sixty (60) calendar months from the
Second Modification Closing Date under the Loan Agreement, plus the
number of days from the Second Modification Closing Date to the end of
the month in which the Second Modification Closing Date occurs,
therefore expiring on December 31, 2005.
13. Textron Mortgages. Section 1.1(uuuu) of the Loan Agreement is hereby
deleted in its entirety and replaced with the following:
(uuuu) Textron Mortgages. Collectively, four separate properly
recorded and perfected mortgages delivered by Borrower in favor of
Lender securing the Loan and encumbering the Resort Property and all
Improvements (including the Units, all Interval Lease Contracts and,
to the greatest extent permitted under United States and Mexican law,
all Unsold Intervals) constructed or to be constructed
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thereon, subject only to the Permitted Liens and Encumbrances. The
Textron Mortgages shall be of a second priority and exclusive (with
the exception of the FINOVA Mortgages) as to the Resort Property
(including all possible future phases, all amenities, improvements and
fixtures now or hereafter located on the Resort Property, and all
easements and other rights appurtenant to the Resort Property now
existing or to be constructed or renovated) and the Improvements. In
accordance with Mexican law, Textron's Mortgages shall be perfected by
recording amendments to the existing guaranty Trust Agreements which
establish the FINOVA Mortgages in order to add Lender as the second
beneficiary in guaranty as to each of the Resorts, with FINOVA
remaining as the first beneficiary in guaranty as to each of the
Resorts. The documents establishing the guaranty Trust Agreements
shall be amended under terms acceptable to Lender, the trustee of the
guaranty Trust Agreements (the "Land Trustee") shall be a bank
acceptable to Lender, and the Trust Agreements shall be recorded with
the Public Registries of Property in the location of each of the
Resorts. The four separate Trust Agreements establishing the Textron
Mortgages shall be in the total aggregate amount of US$18,000,000.00,
with Trust Agreements encumbering the Club Xxxxxx Resort at Cancun,
Club Xxxxxx Resort at Puerto Vallarta, Club Xxxxxx Resort at Los Cabos
and Club Xxxxxx Resort at Acapulco in the amounts of US$5,000,000,
US$5,000,000, US$3,000,000 and US$5,000,000, respectively. The Trust
Agreements shall each include an acknowledgement by Borrower and
FINOVA to Lender's rights in and to the Resort Property and to
Lender's rights to the Notes Receivable and related Interval Lease
Contracts and Intervals to be financed by Lender pursuant to the terms
of this Agreement.
14. Loan. Section 2.1 of the Loan Agreement and Section 11 of the First
Modification Agreement are hereby deleted in their entirety and replaced with
the following:
2.1 Loan. Except as may be expressly set forth herein to the
contrary, all amounts of money set forth herein and in the Loan
Documents shall be in U.S. Dollars. Upon the terms and subject to
the conditions set forth in this Agreement, as modified by the
First Modification Agreement and by the Second Modification
Agreement, Lender shall advance to Borrower, and Borrower may
borrow, repay and reborrow, principal under the Loan to be funded
in a series of Advances during the initial full twelve (12) month
period following the Second Modification Closing Date (the
"Revolving Credit Period") not to exceed an outstanding balance
of the lesser of US$18,000,000 or the Borrowing Base. In
accordance with the provisions of Section 4.2(c)(v) and Section
4.2(c)(vi) of the
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Loan Agreement, Advances would be made in increments of at least
US$50,000 but not more often than twice a month. As more fully
set forth in Section 6.11 of the Loan Agreement, the proceeds of
the Loan will be disbursed by Lender solely to pay for Loan Costs
(as such term is defined in the Commitment), to Borrower for
amortization (principal or interest) of mortgage and non-mortgage
debt owed by Borrower or by any Affiliates of Borrower and for
sales, marketing, working capital, project development and
administrative expenses incurred in the operations for the
Resorts, and for future expansion of timeshare development in
accordance with plans and projections acceptable to Lender
(provided, however, that the use of the proceeds of the Loan for
such expansion shall not adversely affect the operations of any
of the Resorts).
The maximum Loan amount (exclusive of accrued but unpaid
interest) which may be outstanding at any time under the Loan
Agreement, as modified by the First Modification Agreement and by
the Second Modification Agreement, shall not exceed
US$18,000,000.00, with a maximum of US$13,000,000 under Tranche A
and a maximum of US$5,000,000 under Tranche B, and Lender shall
have no obligation whatsoever to make any Advance which would
cause the aggregate outstanding principal balances of the Loan to
exceed US$18,000,000.00. In the event that the proceeds of the
Loan and any other amounts required to be paid by Borrower
hereunder are insufficient to fully pay all costs as contemplated
hereunder such proceeds will be applied, or if the use of the
Loan proceeds varies materially (as determined reasonably and in
good faith by Lender) from the uses described herein, then Lender
shall have no obligation to fund (or continue funding) the Loan
or any portion thereof; provided, however, that, Borrower shall
be permitted to provide from its own funds an amount sufficient
to cover that portion of the Loan proceeds used for uses
materially varying from the uses described herein.
15. Note Maturity Date. Section 2.3(b) of the Loan Agreement and Section 12
of the First Modification Agreement are hereby deleted in their entirety and
replaced by the following:
(b) Final Payment. The entire outstanding principal balance of
the Loan, together with all other Obligations, shall be paid in full
on or before the first day of the sixtieth (60th) month following the
end of the month in which the Second Modification Closing Date under
the Loan Agreement occurs (the "Note Maturity Date").
14
16. Cross-Collateralization and Default. Section 3.7 of the Loan Agreement
and Section 13 of the First Modification Agreement are hereby deleted in their
entirety and replaced with the following:
3.7 Cross-Collateralization and Default. The Collateral including,
but not limited to, the Acapulco Mortgage (as defined below),
shall secure all of the Obligations. All Liens, pledges,
assignments, mortgages, security interests and collateral granted
by any Borrower entity, Guarantor or any Affiliate of any
Borrower entity or Guarantor to or for the benefit of Lender
pursuant hereto or any other related documents or instruments
shall also secure the Obligations. In addition, all other loans
of any type made by Lender to any Borrower entity, Guarantor, or
any Affiliate of any Borrower entity or Guarantor shall be
cross-collateralized and cross-defaulted.
17. Use of Proceeds/Margin Stock. Section 6.11 of the Loan Agreement and
Section 14 of the First Modification Agreement are hereby deleted in their
entirety and replaced by the following:
6.11 Use of Proceeds/Margin Stock. The proceeds of the Loan will be
disbursed only for the following purposes:
(a) Payment of the Loan Costs (as defined in the Commitment),
attorneys fees, closing costs and those amounts set forth in
Section 7.1(v) of the Loan Agreement;
(b) Payment of all indebtedness secured by any prior and
subordinate liens and mortgages encumbering all or any
portion of the Collateral, except the Declaration, the
remaining Timeshare Documents and the Security Documents (as
defined in the Commitment); and
(c) To Borrower:
(i) To pay marketing, project development, sales and
administrative expenses incurred in connection with the
marketing and sale of Encumbered Intervals and in
connection with the operations for the Resort, for
working capital, for future expansion of timeshare
development in accordance with plans and projections
acceptable to Lender (provided, however, that the use
of the proceeds of the Loan for such expansion shall
not adversely affect the operations of any of the
Resorts), and as provided for under Section 2.1 of the
Loan Agreement. Further, the increase in Tranche A of
the Loan in the amount of US$3,000,000 pursuant to the
terms of the First Modification Agreement will be
restricted to capital investments made by Raintree
North America Resorts, Inc., a Texas corporation, an
Affiliate of Borrower, in that certain resort project
located in the City of Cathedral City, State of
California, and commonly known as the Cimarron Golf
Resort.
15
If the proceeds of any Advance and other monies paid by
Borrower to Lender are insufficient to satisfy the costs and
liens with respect to Collateral against which an Advance is
to be made, or the use of proceeds of the Loan or any
Advance varies materially, as determined by Lender in its
sole discretion, from the uses described above, Lender shall
have no obligation to fund the remainder of the Loan or any
further Advances.
18. Form Request for Advance. Exhibit F to the Loan Agreement is hereby
deleted in its entirety and replaced and superceded by Exhibit F attached hereto
and incorporated herein by this reference.
19. Expenses. Contemporaneously with the first Advance of the Loan that
occurs on or after the Second Modification Closing Date (but in no event later
than sixty (60) days following the Second Modification Closing Date), Borrower
shall pay all costs and expenses related to the negotiation, documentation, and
closing of the subject Loan modification transaction, including but not limited
to the costs of title updates, recording and search fees, Lender's attorneys'
fees, and all travel and other out-of-pocket expenses reasonably incurred by
Lender in connection therewith.
20. Cooperation; Other Documents and Actions. Borrower and the Guarantor
agree to cooperate in good faith with Lender by executing, acknowledging, and/or
delivering to Lender such other amendments to the Loan Documents and such title
and legal opinions, and other documents and information, and by taking all such
other actions, as Lender may request, in its sole discretion, in order properly
to document and otherwise effectuate the subject Loan modification transaction.
21. Special Advance. Lender's initial advance under this Second
Modification Agreement not to exceed the amount of US$1,500,000 is subject to
the following conditions:
a. The amendment to the FINOVA Mortgage presently encumbering the
Club Xxxxxx Resort at Acapulco whereby Lender shall be added as
second beneficiary in guaranty shall be executed within fifteen
(15) days following the execution of this Second Modification
Agreement (the "Acapulco Mortgage"), and shall be presented to
the Land Trustee and notary by no later than January 31, 2001 and
recorded in the appropriate real property records immediately
thereafter.
16
b. Final lender's title insurance policies acceptable to Lender for
each of the four Resorts delivered by January 31, 2001, with the
exception of Club Xxxxxx Resort at Acapulco which shall be
delivered by February 15, 2001.
c. Amendment of the Intercreditor Agreement satisfactory to Lender
in order to reflect the Acapulco Mortgage completed by January
31, 2001.
d. Opinion letters satisfactory to Lender from Borrower's United
States and Mexican counsel delivered by January 31, 2001.
e. Resolution satisfactory to Lender from Guarantor.
f. Confirmation that notice has been provided to consumer obligors.
g. Execute amendment to pledge on Pledged Notes Receivable to
incorporate Tranche B of the Loan and to reflect the Club Xxxxxx
Resort at Acapulco by January 31, 2001.
h. Modification of the Lockbox Agreement by January 31, 2001.
i. Provide Lender with any other amendment documents deemed
necessary by Lender to reflect the modifications set forth
herein.
22. Additional Collateral and Promissory Notes.
a. Additional Collateral. By executing this Second Modification
Agreement, Borrower and Guarantor acknowledge and agree that in
the event Lender obtains information which establishes that
Lender's security interests as second beneficiary in guaranty
under the FINOVA Mortgages have decreased in value or are
otherwise disputable, Lender reserves the right to obtain a
security interest from Borrower and Guarantor in additional
collateral, including an assignment of Borrower's beneficial
interest under the FINOVA Mortgages, provided, however, that
Lender shall act reasonably in the designation of such additional
collateral and the grant of a security interest in such
additional collateral will not cause an undue financial burden
for Borrower or Guarantor.
b. Promissory Notes. By executing this Second Modification
Agreement, Borrower and Guarantor acknowledge and agree that
Lender has reserved the right to require Borrower and Guarantor
to execute additional promissory notes (either in the form of the
Second Amended and Restated Note Receivable Promissory Note or in
the form of a promissory note with dual jurisdiction enforceable
in the United States and Mexico) in order to evidence Borrower's
and Guarantor's obligations to Lender under each of the FINOVA
Mortgages through which Lender has obtained a second beneficial
interest in guaranty.
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23. Authority.
a. As of the Second Modification Closing Date, each Borrower entity
(a) is a Mexican limited responsibility corporation with variable
capital duly registered, validly existing and in good standing
under the laws of Mexico and duly licensed or qualified under the
laws of each jurisdiction in which the character or location of
the properties owned by it or the business transacted by it
requires licensing and qualification, and (b) has all requisite
power, corporate or otherwise, to conduct its business and to
execute and deliver, and to perform its obligations under, the
Loan Documents.
b. The execution, delivery, and performance by each Borrower entity
of this Second Modification Agreement and all documents and
instruments executed by Borrower contemporaneously herewith have
been duly authorized by all necessary corporate action by
Borrower and do not and will not (i) violate any provision of the
Memorandum and Articles of Incorporation of any Borrower entity,
or any contract, agreement, statute, ordinance, rule, regulation,
order, writ, judgment, injunction, decree, determination, or
award presently in effect to which any Borrower is a party or is
subject; (ii) result in, or require the creation or imposition
of, any Lien upon or with respect to any asset of any Borrower
other than Liens in favor of Lender; or (iii) result in a breach
of, or constitute a default by any Borrower under, any indenture,
loan, or credit agreement or any other contract, agreement,
document, instrument, or certificate to which Borrower is a party
or by which it or any of its assets are bound or affected.
c. As of the Second Modification Closing Date, Guarantor (a) is a
Nevada corporation duly registered, validly existing and in good
standing under the laws of Nevada and the United States and duly
licensed or qualified under the laws of each jurisdiction in
which the character or location of the properties owned by it or
the business transacted by it requires licensing and
qualifications, and (b) has all requisite power, corporate or
otherwise, to conduct its business and to execute and deliver,
and to perform its obligations under, the Loan Documents.
d. The execution, delivery, and performance by Guarantor of this
Second Modification Agreement and all documents and instruments
executed by Guarantor contemporaneously herewith have been duly
authorized by all necessary corporate actions by Guarantor and do
not and will not (i) violate any provision of the Articles or
By-Laws of Guarantor, or any contract, agreement, statute,
ordinance, rule, regulation, order, writ, judgment, injunction,
decree, determination, or award presently in effect to which
Guarantor is a party or is subject; (ii) result in, or require
the creation or imposition of, any Lien upon or with respect to
any asset of Guarantor other than Liens in favor of Lender; or
(iii) result in a breach of, or constitute a default by Guarantor
under, any indenture, loan, or credit agreement or any other
contract, agreement, document, instrument, or certificate to
which Guarantor are a party or by which they or any of their
assets are bound or affected.
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e. No approval, authorization, order, license, permit,
franchise, or consent of, or registration (with the exception of the
registration of the Textron Mortgages), declaration, qualification, or filing
with, any governmental authority or other Person is required in connection with
the execution, delivery, and performance by Borrower or Guarantor of the Loan
Agreement, as modified hereby, or any of the other Loan Documents.
f. This Second Modification Agreement and the other Loan
Documents constitute legal, valid and binding obligations of Borrower and
Guarantor, enforceable against Borrower and Guarantor in accordance with their
respective terms.
24. Miscellaneous.
a. No Other Changes. Except as expressly set forth herein, each
and every term, provision, and condition contained in the Loan
Agreement and in the First Modification Agreement including all
exhibits and schedules thereto and all of Lender's rights and remedies
thereunder, shall remain unchanged and in full force and effect
following the Second Modification Closing Date. In the event of any
conflict between the provisions hereof and those contained in the Loan
Agreement, the First Modification Agreement or any of the other Loan
Documents, the provisions hereof shall govern and control the parties'
respective rights and obligations with respect to the Loan.
b. Ratification. Borrower and the Guarantor hereby ratify and
reaffirm as of the date hereof all covenants, conditions, provisions,
representations, and warranties made or contained in the Loan
Agreement, the First Modification Agreement or any of the other Loan
Documents, agree, except as expressly provided herein or in the Second
Amended Guaranty Agreement to the contrary, to be legally bound
thereby and to comply fully therewith, and acknowledge Lender's right
to enforce such Loan Agreement, the First Modification Agreement and
other Loan Documents in accordance with the term, provisions, and
conditions thereof.
c. Counterparts. This Second Modification Agreement may be
executed in identical counterparts, each of which shall be deemed an
original for any and all purposes and all of which, collectively,
shall constitute one and the same instrument.
d. No Defaults. Borrower and the Guarantor hereby acknowledge and
represent that Lender has complied fully with all of its obligations
under the Loan Agreement, the First Modification Agreement and the
other Loan Documents through the date hereof and is not currently in
default thereunder.
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IN WITNESS WHEREOF, the parties hereto have caused this Modification
Agreement to be duly executed and delivered as of the date first above written.
BORROWER:
WITNESS: CR Resorts Cancun, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
WITNESS: CR Resorts Los Cabos, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
WITNESS: CR Resorts Puerto Vallarta, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
20
[SEAL]
WITNESS: Corporacion Mexitur, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
WITNESS: Cancun Timeshare Trust, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
WITNESS: CR Resorts Cabos Timeshare Trust, S. de X.X. de C.V.,
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
WITNESS: CR RESORTS Puerto Vallarta Timeshare Trust S. de X.X.
a Mexican limited responsibility
corporation with variable capital
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
21
LENDER:
TEXTRON FINANCIAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
--------------------- -----------------------
Witness Name: Xxxxxx X. Xxxxxxx
Its:Vice President
GUARANTOR: Raintree Resorts International, Inc.,
a Nevada corporation
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------- -----------------------
Witness Name: Xxxxxxx X. Xxxx
Its:Attorney in fact
[SEAL]
22
EXHIBIT F
FORM OF REQUEST FOR ADVANCE (RECEIVABLES)
23
