Exhibit 10.17
LOAN AND SECURITY AGREEMENT
(RECEIVABLES TRANSACTIONS WAREHOUSE FACILITY)
This LOAN AND SECURITY AGREEMENT (RECEIVABLES TRANSACTIONS WAREHOUSE
FACILITY) is made and entered into as of September 30, 1999, by and among RESORT
FUNDING, INC., a Delaware corporation ("Borrower"), and FINOVA CAPITAL
CORPORATION, a Delaware corporation ("Lender").
In consideration of the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties to this Agreement, intending to be legally
bound, hereby agree as follows:
SECTION
1. DEFINITION OF TERMS.
The capitalized terms used in this Agreement are defined in this Section
1. The definitions include the singular and plural forms of the terms defined.
1.1 Advance. A portion of the proceeds of the Loan advanced from time to
time by Lender to Borrower in accordance with the terms of this Agreement.
1.2 Advance Request. Defined in Section 4.3 hereof.
1.3 Affiliate.
(a) Any shareholder, officer, director, general partner, or member of
Borrower; and
(b) Any Person that, directly or indirectly, through one (1) or more
intermediaries, controls, is controlled by, or is under common control with
Borrower or for which any other Affiliate of Borrower is an officer, director,
shareholder, general partner, or member. For purposes of the definition of
"Affiliate:" (i) a Person shall be presumed to be in control of a corporation if
that Person, either alone or pursuant to an arrangement or understanding with
one (1) or more other Persons, (A) owns, controls, or has the power to vote
(including by proxy) greater than fifty percent (50%) of any class of voting
securities of such corporation or that determines in any manner the election or
appointment of a majority of the directors thereof; or (B) has the power or
practical ability to exercise a controlling influence over the management or
policies of such corporation; and (ii) a Person shall be deemed to be in control
of a Person other than a corporation if that Person, either alone or pursuant to
an arrangement or understanding with one (1) or more other Persons, (A) owns,
controls, or has the power to vote (including by proxy) greater than fifty
percent (50%) of the equity or beneficial interest of such Person; or (B) has
the power or practical ability to exercise a controlling influence over the
management or policies of such Person.
1.4 Agreement. This Loan and Security Agreement (Receivables Transactions
Warehouse Facility) by and among Borrower and Lender (including the exhibits and
schedules hereto), as it may be amended and/or restated from time to time.
1.5 Applicable Borrowing Base Percentage. Ninety percent (90%).
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1.6 Applicable Declaration. With respect to an Applicable Resort, the
declaration of condominium, declaration of covenants, conditions, and
restrictions, master deed, or similar document, together with any amendments or
restatements thereof, that establishes the underlying form of ownership of such
Applicable Resort and is recorded in the appropriate public records of the
Applicable Jurisdiction.
1.7 Applicable Jurisdiction. With respect to an Applicable Resort, the state,
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county, municipality, and/or other governmental jurisdiction in which such Applicable
Resort is located.
1.8 Applicable Laws. With respect to an Applicable Resort, any and all
federal, state, and local statutes, ordinances, rules, regulations, court orders
and decrees, administrative orders and decrees, and other legal requirements of
any and every conceivable type to which Borrower, Guarantor, such Applicable
Resort or any portion thereof, or all or any portion of the Collateral or any
Applicable Underlying Transaction Collateral is or becomes subject from time to
time.
1.9 Applicable Mortgage. A mortgage or deed of trust, if any, that secures
the payment by an Applicable Underlying Developer of amounts owed to Borrower by
such Applicable Underlying Developer in connection with an Applicable Underlying
Transaction.
1.10 Applicable Resort. A Qualified Resort in connection with which Borrower has
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engaged in a Qualified Transaction with a Qualified Developer.
1.11 Applicable Timeshare Documents. All Applicable Declarations and other
documents and instruments relating to an Applicable Resort and/or the Units,
Common Elements, Common Furnishings, and Intervals thereat, including but not
limited to the project documents, registrations and other approvals, business
licenses, Applicable Timeshare Owners' Association agreements and corporate
documents, budgets, and other documents used in the marketing, sale, and
financing of such Intervals. Each Applicable Timeshare Document shall be in form
and content acceptable to Lender. Lender shall have received and approved true,
correct, and complete copies of all Applicable Timeshare Documents as a
condition precedent to any Advances hereunder in respect of the Applicable
Resort to which such Applicable Timeshare Documents pertain.
1.12 Applicable Timeshare Owners' Association. With respect to each Applicable
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Resort, a not-for-profit corporation or other legal entity organized under the laws of
the Applicable Jurisdiction.
1.13 Applicable Underlying Borrower. A Qualified Developer that is the maker of a
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Pledged Note Receivable.
1.14 Applicable Underlying Consumer Notes Receivable Purchase Portfolio.
At any time all Consumer Notes Receivable which have been purchased by Borrower
in a Qualified Purchase and remain owned by Borrower.
1.15 Applicable Underlying Developer. An Applicable Underlying Borrower or an
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Applicable Underlying Seller.
1.16 Applicable Underlying Guarantor. Any Person that has executed and delivered
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an Underlying Guaranty in favor of Borrower in connection with an Applicable Underlying
Transaction.
1.17 Applicable Underlying Loan. A Qualified Loan as to which Lender has agreed
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to make certain Advances hereunder.
1.18 Applicable Underlying Loan Collateral. Any and all collateral granted
or available to Borrower to secure the payment by an Applicable Underlying
Borrower of all principal, interest, and other amounts owed to Borrower by such
Applicable Underlying Borrower in connection with an Applicable Underlying Loan.
1.19 Applicable Underlying Loan Documents. All documents and instruments
that evidence or secure an Applicable Underlying Loan, including but not limited
to any Notes Receivable, Applicable Mortgages, and Underlying Guarantees
executed and delivered to Borrower in connection therewith. The form and content
of each Applicable Underlying Loan Document shall be satisfactory to Lender and
approved by Lender in writing prior to any Advances hereunder in respect of the
Applicable Underlying Loan to which such Applicable Underlying Loan Document
pertains. Lender has approved the forms of Applicable Underlying Loan Documents
identified in a letter from Lender to Borrower dated as of even date herewith.
Borrower agrees not to amend, restate, or otherwise modify any Applicable
Underlying Loan Documents in a material manner without Lender's prior written
consent. Copies of any such amended, restated, or otherwise modified Applicable
Underlying Loan Document, as so approved by Lender and fully executed and
delivered by Borrower, shall be provided to Lender and Servicing Agent promptly
following the effective date thereof. Modifications to incorporate changes
required for the financing of (a) Interval Mortgages secured by Intervals which
are timeshare licenses or timeshare estates which are undivided interests, or
(b) contracts for deed shall not be considered material modifications.
1.20 Applicable Underlying Purchase. A Qualified Purchase in which
Borrower has acquired Eligible Consumer Notes Receivable against which Lender
has agreed to make certain Advances hereunder.
1.21 Applicable Underlying Purchase Collateral. Any and all collateral
granted or available to Borrower to secure the payment by an Applicable
Underlying Seller of all amounts owed to Borrower by such Applicable Underlying
Seller in connection with an Applicable Underlying Purchase.
1.22 Applicable Underlying Purchase Documents. All documents and
instruments that evidence or secure an Applicable Underlying Purchase, including
but not limited to any Put and Reserve Agreements, Applicable Mortgages, and
Underlying Guarantees executed and delivered to Borrower in connection
therewith. The form and content of each Applicable Underlying Purchase Document
shall be satisfactory to Lender and approved by Lender in writing prior to any
Advances hereunder in respect of the Applicable Underlying Purchase to which
such Applicable Underlying Purchase Document pertains. Lender has approved the
forms of Applicable Underlying Purchase Documents identified in a letter from
Lender to Borrower dated as of even date herewith. Borrower agrees not to amend,
restate, or otherwise modify any Applicable Underlying Purchase Documents in a
material manner without Lender's prior written consent. Copies of any such
amended, restated, or otherwise modified Applicable Underlying Purchase
Document, as so approved by Lender and fully executed and delivered by Borrower,
shall be provided to Lender and Servicing Agent promptly following the effective
date thereof. Modifications to incorporate changes required for the purchase of
(a) Interval Mortgages secured by Intervals which are timeshare licenses or
timeshare estates which are undivided interests, or (b) contracts for deed shall
not be considered material modifications.
1.23 Applicable Underlying Purchase Property. All Purchased Consumer Notes
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Receivables and other property purchased by Borrower as part of an Applicable Underlying
Purchase.
1.24 Applicable Underlying Seller. A Qualified Developer that is the obligor
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under a Pledged Put and Reserve Agreement.
1.25 Applicable Underlying Transaction. A Qualified Loan or a Qualified Purchase.
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1.26 Applicable Underlying Transaction Collateral. Any and all collateral granted
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or available to Borrower to secure the payment and performance by an Applicable
Underlying Developer in connection with an Applicable Underlying Transaction.
1.27 Applicable Underlying Transaction Documents. With respect to an Applicable
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Underlying Transaction, the Applicable Underlying Loan Documents or the Applicable
Underlying Transaction Documents, as the case may be.
1.28 Borrower. Resort Funding, Inc., a Delaware corporation, together with its
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successors and assigns.
1.29 Borrowing Base. (a) With respect to an Applicable Underlying Loan and
the related Pledged Note Receivable, an amount equal to the lesser of (i) the
unpaid principal balance of the Loan or (ii) the product of (A) the Applicable
Borrowing Base Percentage times (B) the lesser of (1) the aggregate outstanding
principal balance of each of the Eligible Consumer Notes Receivable that
comprise a portion of Borrower's Applicable Underlying Loan Collateral for the
Applicable Underlying Loan and the Pledged Note Receivable or (2) the present
value of the contractual cash flow of each of such Eligible Consumer Notes
Receivable discounted at the interest rate then applicable under the terms of
the Note; and (b) with respect to an Applicable Underlying Purchase, amount
equal to the least of (i) Borrower's unamortized investment in the Applicable
Underlying Consumer Notes Receivable Purchase Portfolio for the Applicable
Underlying Purchase, (ii) the lowest price at which the Applicable Underlying
Seller either has the right or may be obligated to repurchase the Applicable
Underlying Consumer Notes Receivable Purchase Portfolio for the Applicable
Underlying Purchase or (iii) the product of (A) the Applicable Borrowing Base
Percentage times (B) the lesser of (1) the aggregate outstanding principal
balance of each of the Eligible Consumer Notes Receivable that comprise a
portion of Borrower's Applicable Underlying Consumer Notes Receivable Purchase
Portfolio for the Applicable Underlying Purchase or (2) the present value of the
contractual cash flow of each of such Eligible Consumer Notes Receivable
discounted at the interest rate then applicable under the terms of the Note.
1.30 Borrowing Term. A period of twenty-four (24) calendar months
following the earliest of the date of the initial Advance, the date of the
initial advance under the RFI ADC Credit Facility or October 31, 2001.
1.31 Business Day. Each day that is not a Saturday, a Sunday, or a legal holiday
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under the laws of the State of New York or the United States.
1.32 Closing Date. The date of this Agreement.
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1.33 Code. The version of the Uniform Commercial Code in effect from time
to time in an Applicable Jurisdiction, as amended from time to time.
1.34 Collateral. Collectively, the Pledged Notes Receivable, Pledged Put
and Reserve Agreements, Purchased Consumer Notes Receivable and Applicable
Mortgages (if any), together with all accounts, chattel paper, general
intangibles, instruments and investment property related thereto and the cash
and non-cash proceeds thereof, and all now owned or hereafter acquired right,
title, and interest of Borrower in and to all Applicable Underlying Transaction
Collateral for any and all of the Pledged Notes Receivable, Pledged Put and
Reserve Agreements and Applicable Mortgages (if any) and in and to all
Applicable Underlying Purchase Property, including but not limited to the
following (to the extent applicable):
(a) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in all Applicable Mortgages (if
any) that secure any Pledged Notes Receivable or Pledged Put and Reserve
Agreements;
(b) An absolute and unconditional first collateral assignment in and
pledge of all of Borrower's right, title, and interest in all Pledged
Consumer Notes Receivable, together with all accounts, chattel paper,
general intangibles, instruments and investment property related thereto
and the cash and non-cash proceeds thereof;
(c) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in and to all Interval Mortgages
that secure the payment of Pledged Consumer Notes Receivable or Purchased
Consumer Notes Receivable;
(d) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in and to the Encumbered
Intervals, together with all appurtenant rights and interests, including,
without limitation, appurtenant rights and interests in and to the Common
Elements and Common Furnishings and all easement, license, and use rights
in and to all Applicable Resort facilities and amenities, all as described
and set forth in the Applicable Timeshare Documents;
(e) An absolute and unconditional first collateral assignment and
pledge in and to all of Borrower's right, title, and interest in all
documents, instruments, accounts, chattel paper, general intangibles and
investment property relating to the Pledged Consumer Notes Receivable, the
Purchased Consumer Notes Receivable, the Interval Mortgages, and the other
Applicable Underlying Transaction Collateral (including the cash and
non-cash proceeds thereof);
(f) An absolute and unconditional first collateral assignment and
pledge in and to all of Borrower's right, title, and interest in all
furniture, furnishings, and fixtures of every kind and description (and
all improvements and accessions thereto, including, without limitation,
the Common Furnishings) located in or on or used in connection with any
Encumbered Interval;
(g) An absolute and unconditional first collateral assignment of all
other agreements to which any Applicable Underlying Developer is or
becomes a party or holds any interest and which in any way relate to the
use, occupancy, maintenance, or enjoyment of any Encumbered Intervals or
Encumbered Personal Property, including but not limited to utility
contracts, maintenance agreements, management agreements, service
contracts, and any agreement guaranteeing the performance of the
obligations contained in any of the foregoing agreements (to the extent
that assignments thereof are obtained by Borrower from the Applicable
Underlying Developer);
(h) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in and to any and all easements,
contracts, leasehold interests (whether as lessor or lessee), permits,
licenses, and approvals in respect of all or any portion of an Applicable
Resort;
(i) First priority Liens in and to all of Borrower's right, title,
and interest in and to all books, records, reports, computer tapes,
computer disks, and software relating to all or any portion of the
Collateral;
(j) Extensions, additions, improvements, betterments, renewals,
substitutions, and replacements of, for, or to any of the Collateral,
wherever located, together with the products, proceeds, issues, rents, and
profits thereof and any replacements, additions, or accessions thereto or
substitutions thereof, and all rights in or under insurance policies and
to the proceeds of any insurance policies covering any of the other
Collateral, all rights to unearned or refunded insurance premiums, and the
proceeds of any condemnation awards or any claims regarding any of the
other Collateral;
(k) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in and to any rights inuring to
an Applicable Underlying Developer related to easements, leasehold
interests (whether as lessor or lessee), franchises, permits, approvals,
licenses, facilities, and amenities on, affecting, or appurtenant to the
Applicable Resorts and rights to occupy, use, and enjoy any such
facilities or amenities and any Encumbered Intervals;
(l) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in, to and under all Payment
Authorization Agreements signed and delivered by or on behalf of a
Purchaser of an Encumbered Interval and all accounts and proceeds relating
thereto or deriving therefrom;
(m) An absolute and unconditional first collateral assignment of all
of Borrower's right, title, and interest in and to any rights inuring to
an Applicable Underlying Developer or Borrower pursuant to any designation
of such Applicable Underlying Developer or Borrower as an "institutional
mortgagee," an "institutional lender," or a "mortgagee" in connection with
any Encumbered Interval as provided in the Applicable Underlying Timeshare
Documents; and
(n) All now owned or hereafter acquired right, title, and interest
of Borrower in and to any and all of the collateral for any other
timeshare-related loan or credit facility between Lender and Borrower or
an Affiliate of Borrower.
1.35 Combined Outstanding Commitments. The sum of the Outstanding RFI
Receivables Credit Facility Commitment and the Outstanding RFI ADC Credit
Facility Commitment (as defined in the RFI ADC Credit Facility Agreement).
1.36 Common Elements. The common areas and facilities, as defined or
provided for in the Applicable Declaration and/or other Applicable Timeshare
Documents, including, without limitation, the Land and all improvements thereto
except for the Units that have been dedicated to the condominium or comparable
form of ownership, as well as any limited common elements, as those terms are
defined and used in the Applicable Declaration.
1.37 Common Furnishings. All furniture, furnishings, fixtures, appliances,
carpeting, and equipment located in a Unit or elsewhere within an Applicable
Resort and available for use by Purchasers in accordance with the terms and
conditions of the Applicable Timeshare Documents.
1.38 Consumer Note Receivable. A promissory note, installment sales
contract, or other evidence of indebtedness made and executed by a Purchaser in
favor of an Applicable Underlying Developer in connection with such Purchaser's
acquisition of an Interval.
1.39 Custodial Agreement. The custodial agreement, if any, from time to
time entered into and in effect between Lender, Borrower and Custodian and in
form and substance satisfactory to Lender, pursuant to which Custodian will
maintain custody of all original Applicable Underlying Transaction Documents
including, without limitation, all Pledged Consumer Notes Receivable, Purchased
Consumer Notes Receivable and related collateral documents and take certain
actions in connection therewith.
1.40 Custodial Fee. Five Dollars ($5) per each Pledged Consumer Note
Receivable and each Purchased Consumer Note Receivable, payable at the time such
Consumer Note Receivable is first delivered to Lender or to Custodian.
1.41 Custodian. FINOVA Portfolio Services, Inc., an Arizona corporation
and a wholly-owned subsidiary of Lender, or such other Person as Lender, in its
discretion, engages from time to time, at Borrower's sole cost and expense, to
maintain custody of all original Applicable Underlying Transaction Documents and
take certain actions in connection therewith.
1.42 Debtor Relief Laws. Any applicable liquidation, conservatorship,
receivership, bankruptcy, moratorium, rearrangement, insolvency, reorganization,
or similar law, proceeding, or device providing for the relief of debtors from
time to time in effect and generally affecting the rights of creditors.
1.43 Default. An Event of Default or an event or condition, the occurrence of
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which, with the lapse of time or the giving or notice or both, would become, an Event of
Default .
1.44 Default Rate. The Interest Rate plus five percent (5%) per annum;
provided, however, that the Default Rate shall in no event exceed the highest
interest rate permitted to be charged under any applicable usury laws.
1.45 Eligible Consumer Note Receivable. A Pledged Consumer Note Receivable
or Purchased Consumer Note Receivable that satisfies each of the following
criteria or such other criteria as Lender may approve in writing:
(a) The Applicable Underlying Developer is the sole payee;
(b) It arises from a bona fide sale by an Applicable Underlying
Developer to a Purchaser of one (1) or more Intervals; provided a Consumer
Note Receivable shall not be an eligible Consumer Note Receivable if and
to the extent that the Purchaser has purchased more than six (6) Intervals
in the Applicable Resort;
(c) 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, the Interval sale has closed except as
otherwise permitted in Exhibit "K" attached hereto and herein incorporated
by this reference, and the Interval sale otherwise complies fully with the
terms, provisions, and conditions of this Agreement, the other Loan
Documents, the Applicable Underlying Transaction Documents, and all
Applicable Laws, and is otherwise legally valid and enforceable against
the Applicable Underlying Developer;
(d) It is encumbered by an Interval Mortgage; and except as
otherwise permitted in this Section 1.45(d) or in Exhibit "K", attached
hereto and incorporated herein by this reference, if the Intervals from
whose sale the Consumer Note Receivable has arisen are coupled with an
estate in real property and the Purchaser is entitled to a deed to the
Interval before the purchase price for the Interval is paid in full, the
Consumer Note Receivable is secured by a recorded Interval Mortgage on the
purchased Interval, which Interval Mortgage has been assigned in a
recorded document to Borrower by the Applicable Underlying Developer and
then assigned in a recorded document by Borrower to Lender; provided,
however, that if the Intervals from whose sale the Consumer Note
Receivable has arisen are coupled with an estate in real property, the
Purchaser is not entitled to a deed to the Intervals before the Purchase
Price is paid in full and the Intervals are not encumbered by a recorded
Interval Mortgage which has been collaterally assigned to Lender, then,
except as otherwise permitted in Exhibit "K", attached hereto and
incorporated herein by this reference, the obligations of the Applicable
Underlying Developer to Borrower under the Applicable Underlying
Transaction Documents shall be secured by an Applicable Mortgage (which
may be the same mortgage or deed of trust which has been given to Borrower
by the Applicable Underlying Borrower and is an "Applicable Mortgage" as
the term is defined in the RFI ADC Credit Facility Agreement) encumbering
legal title to the Intervals, and the mortgagee's or beneficiary's
interest in which shall have been appropriately collaterally assigned to
Lender;
(e) Principal and interest payments on it are payable to the
Applicable Underlying Developer in legal tender of the United States;
(f) Payments of principal and interest on it are due in equal monthly
installments;
(g) It shall have an original term of no more than one hundred twenty
(120) months;
(h) A cash down payment and/or other cash payments have been
received by the Applicable Underlying Developer from the Purchaser or the
maker of the Consumer Note Receivable in an amount equal to at least ten
percent (10%) of the original purchase price of the purchased Interval,
and the Purchaser has received no cash or other rebates of any kind;
(i) No monthly installment due with respect to the Consumer Note
Receivable is more than thirty (30) days' contractually past due at the
time of the initial advance against or the purchase of such Consumer Note
Receivable, as the case may be, under the Applicable Underlying
Transaction and thereafter is contractually past due no more than the
lesser of (A) ninety (90) days or (B) the comparable number of days set
forth in the definition of "eligible note receivable" or its equivalent in
the Applicable Underlying Transaction Documents;
(j) The minimum interest rate on the Consumer Note Receivable must
not be less than twelve percent (12%) per annum;
(k) Except as otherwise permitted in Exhibit "K", attached hereto
and by this reference incorporated herein, the Purchaser of the relevant
Interval has access to a Unit within the Applicable Resort during any use
period reserved by or assigned to such Purchaser, all in accordance with
the Applicable Timeshare Documents;
(l) Neither the Purchaser of the relevant Interval nor any other
maker of the Consumer Note Receivable is an Affiliate of, or related to,
or employed by the Applicable Underlying Developer or Borrower;
(m) Except as otherwise permitted in Exhibit "K", attached hereto
and by this reference incorporated herein, the Purchaser or other obligor
has no claim against the Applicable Underlying Developer, Borrower, or any
Affiliate of the Applicable Underlying Developer or Borrower, or any
defense, set-off, or counterclaim with respect to the Consumer Note
Receivable;
(n) Neither the Consumer Note Receivable nor the Interval Mortgage
which secures it is subject to any prior or other lien, assignment, pledge
or hypothecation;
(o) The Consumer Note Receivable is executed by a U.S. or Canadian
resident; provided, however, that up to ten percent (10%) of the aggregate
outstanding principal balance of all Eligible Consumer Notes Receivable
from any Applicable Resort or Applicable Underlying Developer may from
time to time be comprised of Consumer Notes Receivable executed by
residents of countries other than the United States or Canada;
(p) The original of the Consumer Note Receivable and all related
documents have been endorsed by the Applicable Underlying Developer to
Borrower and then endorsed by Borrower to Lender in the manner prescribed
by Lender and delivered to Lender or Custodian as provided in this
Agreement, and the terms thereof and all instruments related thereto shall
comply in all respects with all Applicable Laws;
(q) Except as otherwise permitted in Exhibit "K", attached hereto
and by this reference incorporated herein, each Unit in the Applicable
Resort which the relevant Purchaser has the right to occupy, pursuant to
the Applicable Timeshare Documents, has been completed and furnished in
accordance with the terms and provisions of such Purchaser's purchase
contract, the Applicable Resort's public offering statement, and the other
Applicable Timeshare Documents, a certificate of occupancy for each such
Unit (or the building in which the Unit is located) has been issued, and
such Unit is not subject to any Lien (other than the Lien created by such
Interval Mortgage and the Permitted Liens and Encumbrances) that has not
previously been consented to in writing by Lender; and
(r) The forms of documents and instruments required to be used under
Applicable Laws or otherwise relating to the Interval purchase transaction
giving rise to such Consumer Note Receivable have been approved in advance
by Lender in writing (including, without limitation, the forms of Consumer
Note Receivable, Interval Mortgage (to the extent applicable, and federal
truth-in-lending disclosure statement)).
1.46 Eligible Note Receivable. A Pledged Note Receivable that satisfies each of
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the following criteria:
(a) The Applicable Underlying Loan that it evidences was originated
by Borrower in the ordinary course of its business;
(b) Advances by Borrower under such Note Receivable may be used by
the Applicable Underlying Borrower solely for purposes of providing
purchase money financing to a Purchaser in connection with an Interval at
the Qualified Resort related to such Applicable Underlying Borrower, to
pay down or pay off loans secured by such Qualified Resort or otherwise in
compliance with the Applicable Underlying Loan Documents;
(c) The Applicable Underlying Loan Documents have been approved in
writing by Lender;
(d) Borrower is the sole payee;
(e) Principal and interest payments on it are payable to Borrower in
legal tender of the United States;
(f) It provides for the payment to Borrower of a minimum rate of
interest approved in writing by Lender at the time it has designated the
Applicable Underlying Loan as a Qualified Loan;
(g) Neither the Applicable Underlying Borrower nor the Applicable
Underlying Guarantor, if any, is an Affiliate of Borrower or Guarantor;
(h) No monthly installment or other amount due with respect to the
Note Receivable is more than thirty (30) days' contractually past due at
the time of its pledge to Lender hereunder, and no such monthly
installment becomes more than sixty (60) days' contractually past due
thereafter;
(i) Neither the Applicable Underlying Borrower nor the Applicable
Underlying Guarantor, if any, has any claim against Borrower, Guarantor,
or any Affiliate thereof, and no defense, set-off, or counterclaim exists
with respect to the Note Receivable at the time of any Advance in respect
thereof; and
(j) The original of the Note Receivable and all related documents
and instruments, the terms of each of which shall comply fully with all
Applicable Laws, have been assigned and, if applicable, endorsed in the
manner prescribed by Lender and delivered to Lender or, if Lender directs,
Custodian.
1.47 Eligible Purchase Transaction. An Applicable Underlying Purchase that
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satisfies each of the following criteria:
(a) The Applicable Underlying Purchase that it evidences was
originated by Borrower in the ordinary course of its business;
(b) Purchase payments made by Borrower under such Applicable
Underlying Purchase may be used by the Applicable Underlying Seller solely
for purposes of providing purchase money financing to a Purchaser in
connection with an Interval at the Qualified Resort related to such
Applicable Underlying Seller, to pay down or pay off loans secured by such
Qualified Resort or otherwise in compliance with the Applicable Underlying
Purchase Documents;
(c) The Applicable Underlying Purchase Documents include a Put and
Reserve Agreement and have been approved in writing by Lender;
(d) Borrower is the sole Person to whom the Applicable Underlying
Seller is obligated under the Applicable Underlying Purchase Documents;
(e) Payments due to Borrower under the Applicable Underlying Purchase
Documents are payable to Borrower in legal tender of the United States;
(f) It provides for the payment to Borrower of a rate of return
approved in writing by Lender at the time it has designated the Applicable
Underlying Purchase as a Qualified Purchase;
(g) Neither the Applicable Underlying Seller nor the Applicable
Underlying Guarantor, if any, is an Affiliate of Borrower or Guarantor;
(h) No amount due to Borrower under the Applicable Underlying
Purchase Documents is more than thirty (30) days' contractually past due
at the time of its pledge to Lender hereunder, and no such monthly
installment becomes more than sixty (60) days' contractually past due
thereafter;
(i) Neither the Applicable Underlying Seller nor the Applicable
Underlying Guarantor, if any, has any claim against Borrower, Guarantor,
or any Affiliate thereof, and no defense, set-off, or counterclaim exists
with respect to the Applicable Underlying Purchase at the time of any
Advance in respect thereof; and
(j) The original of the Applicable Underlying Purchase Documents and
all related documents and instruments, the terms of each of which shall
comply fully with all Applicable Laws, have been endorsed in the manner
prescribed by Lender and delivered to Lender or, if Lender directs,
Custodian.
1.48 Encumbered Personal Property. All furniture, furnishings, fixtures,
appliances, equipment, inventory, supplies, accounts, chattel paper, and general
intangibles at any time located at, arising out of the use of, and/or used or
useful in connection with the management or operation of any Encumbered
Interval, whether now owned or hereafter acquired by Borrower or an Applicable
Underlying Developer, together with all improvements and accessions thereto and
replacements thereof and the cash and non-cash proceeds thereof, a Lien against
which constitutes Applicable Underlying Transaction Collateral for a Pledged
Note Receivable or a Pledged Put and Reserve Agreement, as the case may be, or
Applicable Underlying Purchase Property.
1.49 Environmental Laws. The Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time ("CERCLA"),
the Resource Conservation and Recovery Act of 1976, as amended from time to time
("RCRA"), the Superfund Amendments and Reauthorization Act of 1986, as amended,
the federal Clean Air Act, the federal Clean Water Act, the federal Safe
Drinking Water Act, the federal Toxic Substances Control Act, the federal
Hazardous Materials Transportation Act, the federal Emergency Planning and
Community Right to Know Act of 1986, the federal Endangered Species Act, the
federal Occupational Safety and Health Act of 1970, the federal Water Pollution
Control Act, and any and all comparable statutes or ordinances enacted in an
Applicable Jurisdiction, as all of the foregoing laws may be amended from time
to time, and any rules or regulations promulgated pursuant to the foregoing;
together with any similar local, state or federal statutes, ordinances, rules,
or regulations, either in existence as of the date hereof or enacted or
promulgated after the date of this Agreement, that concern the management,
control, storage, discharge, treatment, containment, removal, and/or transport
of Hazardous Materials or other substances that are or may become a threat to
public health or the environment; together with any common law theory involving
Hazardous Materials or substances that are (or are alleged to be) hazardous to
human health or the environment, based on nuisance, trespass, negligence, strict
liability, or other tortious conduct, or any other federal, state, or local
statute, ordinance, regulation, rule, policy, or determination pertaining to
health, hygiene, the environment, or environmental conditions.
1.50 Event of Default. Defined in Section 7 hereof.
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1.51 Financial Statements. The tax returns, balance sheets, and statements
of income and expense of Borrower and Guarantor and the related notes and
schedules delivered by Borrower prior to the Closing Date, together with the
financial statements and reports of Guarantor delivered to Lender prior to the
Closing Date; and the monthly and annual financial statements and reports
required to be provided to Lender pursuant to Section 6.1(g) hereof.
1.52 GAAP. Generally accepted accounting principles, applied on a
consistent basis, as described in Opinions of the Accounting Principles Board of
the American Institute of Certified Public Accountants and/or in statements of
the Financial Accounting Standards Board which are applicable under the
circumstances as of the date in question.
1.53 Guarantor. Equivest Finance, Inc., a Delaware corporation, together with its
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successors and assigns.
1.54 Guaranty. That certain Guaranty and Subordination executed by
Guarantor and delivered to Lender concurrently with Borrower's execution and
delivery of this Agreement, as it may be amended and/or restated from time to
time. The Guaranty shall be the absolute and unconditional guaranty of payment
and performance of the Loan and all amounts secured by or under the Loan
Documents.
1.55 Hazardous Materials. "Hazardous substances," "hazardous waste,"
"hazardous constituents," "toxic substances," or "solid waste," as defined in
the Environmental Laws, and any other contaminant or any material, waste, or
substance that is petroleum or petroleum based, asbestos, polychlorinated
biphenyls, flammable explosives, or radioactive materials.
1.56 Initial Advance. The first Advance by Lender hereunder.
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1.57 Initial Underlying Transaction Advance. As to a particular Applicable
------------------------------------------
Underlying Transaction, the first Advance by Lender hereunder in connection therewith.
1.58 Interest Rate. The Prime Rate plus 0.50% per annum. The Interest Rate
charged for each calendar month shall be fixed based upon the Prime Rate
published or otherwise determined and in effect as of the first Business Day of
such calendar month. The Interest Rate shall be calculated based on a 360 day
year and charged for the actual number of days elapsed.
1.59 Interval. The right to use and occupy a Unit within an Applicable
Resort and the Common Elements and Common Furnishings appurtenant to such Unit
and/or the Applicable Resort during a reserved or assigned use period, all as
more specifically described in the Applicable Declaration and/or other
Applicable Timeshare Documents. An Interval may be coupled with an estate (such
as a fee simple or leasehold estate) in real property, but is not required to be
coupled with an estate in real property. Without limiting the generality of the
foregoing, an Interval may include "right to use" timeshare interests (which are
not coupled with an estate in real property) such as licenses and points-based
vacation club memberships.
1.60 Interval Mortgage. A mortgage, deed of trust, contract for deed, or
other security agreement acceptable to Lender that creates a valid and
enforceable first priority Lien against the Encumbered Interval identified
therein in accordance with all Applicable Laws (which Encumbered Interval
relates to an Applicable Resort); secures the payment of all principal,
interest, and other amounts owed by a Purchaser to an Applicable Underlying
Developer, pursuant to a Consumer Note Receivable; and, in the case of an
Interval Mortgage which encumbers an Interval which is coupled with an estate
for real property and to which the Purchaser is entitled to a deed before the
purchase price for the Interval is paid in full, has been properly recorded or
registered.
1.61 Land. The real property upon which any portion of an Applicable Resort is
----
situated.
1.62 Lien. Any mortgage, security interest, or other interest in property
securing an obligation owed to, or valid claim by, a Person other than the owner
of such property, whether such interest arises in equity or is based on common
law, statute, or contract.
1.63 Loan. The subject revolving credit facility in a maximum principal
amount not to exceed the Maximum Loan Amount at any time, as described in this
Agreement and evidenced and secured by the Loan Documents.
1.64 Loan Documents. Collectively, the following documents and instruments, as
--------------
each may be amended, renewed, extended, restated, or supplemented from time to time:
(a) This Agreement;
(b) The Note;
(c) The Guaranty;
(d) The Pledges and Assignments of Notes Receivable and Applicable
Mortgages (in the form of Exhibit "A", attached hereto and incorporated
herein by this reference);
(e) The Pledges and Assignments of Put and Reserve Agreements and
Applicable Mortgages (in the form of Exhibit "B", attached hereto and
incorporated herein by this reference);
(f) The Pledges and Assignments of Consumer Notes Receivable and
Interval Mortgages (in the form of Exhibit "C", attached hereto and
incorporated herein by this reference);
(g) Assignments of the Underlying Guarantees (in the form of
Exhibit "D", attached hereto and incorporated herein by this reference);
(h) The Custodial Agreement;
(i) The Servicing Agreement;
(j) The Lockbox Agreement;
(k) UCC-1 (which Lender may require to be amended from time to time
to specifically describe the Pledged Notes Receivable or the Pledged Put
and Reserve Agreements) and UCC-3 financing statements covering the
Collateral, to be recorded in the appropriate public records of each
Applicable Jurisdiction and filed in the office of the Secretary of State
of each Applicable Jurisdiction in which any of the Collateral is located;
and
(l) All such other assignments, agreements, documents, instruments,
certificates, and materials as Lender may require in order to evidence or
secure the Obligations, to evidence and perfect the rights, Liens, and
security interests of Lender contemplated by the Loan Documents, and
otherwise to effectuate the transactions contemplated hereby.
1.65 Lockbox Agent. Manufacturers and Traders Trust Company, a banking
company organized under the laws of the State of New York, or such other Person
as Lender engages, in its discretion, at Borrower's sole cost and expense, to
receive, deposit, and disburse all amounts paid with respect to the Pledged
Consumer Notes Receivable and the Purchased Consumer Notes Receivable and all
other amounts paid by or on behalf of each Applicable Underlying Developer and
each Applicable Underlying Guarantor in accordance with the terms, provisions,
and conditions hereof, of the Lockbox Agreement, and of the Applicable
Underlying Transaction Documents.
1.66 Lockbox Agreement. That certain agreement by and among Lender,
Borrower, and Lockbox Agent in substantially the form of Exhibit "E", attached
hereto and incorporated herein by this reference, pursuant to which Lockbox
Agent is engaged, at Borrower's sole cost and expense, to receive, deposit, and
disburse all amounts paid with respect to the Pledged Consumer Notes Receivable
and the Purchased Consumer Notes Receivable and all other amounts paid by or on
behalf of each Applicable Underlying Developer and each Applicable Underlying
Guarantor in accordance with the terms, provisions, and conditions hereof, of
the Lockbox Agreement, and of the Applicable Underlying Transaction Documents.
1.67 Mandatory Prepayment. Any prepayment of the Loan required by Section 2.6(b)
---------------------
hereof.
1.68 Maturity Date. The date that is one hundred twenty (120) calendar months
--------------
following date of the last Advance.
1.69 Maximum Credit Facilities Amount. Twenty Million Dollars ($20,000,000).
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1.70 Maximum Loan Amount. Twenty Million Dollars ($20,000,000).
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1.71 Minimum Net Worth Requirement. The minimum net worth requirement applicable
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to Guarantor under the terms of the Guaranty.
1.72 Note. That certain Promissory Note that evidences the Loan, dated as
of the Closing Date, made and executed by Borrower to the order of Lender and
delivered to Lender concurrently with Borrower's execution of this Agreement.
1.73 Note Receivable. A promissory note that is now or hereafter made and
executed by an Applicable Underlying Borrower to the order of Borrower,
evidences an Applicable Underlying Loan, and may be secured in part by an
Applicable Mortgage.
1.74 Obligations. All present and future indebtedness, liabilities,
obligations, and responsibilities, both financial and otherwise, to which
Borrower is subject under any of the Loan Documents, whether direct or indirect,
absolute or contingent, including but not limited to all amounts due or becoming
due to Lender in respect of the Loan or any of the Loan Documents, including
principal, interest, prepayment premiums, contributions, taxes, insurance
premiums, loan charges, custodial fees, attorneys' and paralegals' fees and
expenses and other fees or expenses incurred by Lender or advanced to or on
behalf of Borrower by Lender, pursuant to any of the Loan Documents or in
connection with Lender's enforcement of the prompt and complete payment and
performance by Borrower and Guarantor of all indebtedness, liabilities,
obligations, and responsibilities owed by Borrower, pursuant to this Agreement,
any of the other Loan Documents, or otherwise.
1.75 Outstanding Applicable Underlying Loan Commitment. At any time, the
excess, if any, of the maximum principal amount which may then be outstanding
under an Applicable Underlying Loan (if fully funded) over the unpaid principal
balance of the Applicable Underlying Loan.
1.76 Outstanding Applicable Underlying Purchase Commitment. At any time,
the excess, if any, of the maximum unamortized investment by Borrower which may
be outstanding under an Applicable Underlying Purchase (if fully funded) over
the unamortized investment by Borrower in the Applicable Underlying Purchase.
1.77 Outstanding RFI Receivables Credit Facility Commitment. The sum of the
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Outstanding Applicable Underlying Loan Commitments for all of the Applicable Underlying
Loans and the Outstanding Applicable Underlying Purchase Commitments for all of the
Applicable Underlying Purchases.
1.78 Payment Authorization Agreement. The pre-authorized electronic debit
agreement (or provision of a Consumer Note Receivable) by a Purchaser which
provides for payment of a Consumer Note Receivable to the Applicable Underlying
Developer.
1.79 Permitted Liens and Encumbrances. Those liens and encumbrances
affecting all or a portion of the Collateral or any Applicable Underlying
Transaction Collateral to which Lender consents in writing, as set forth on
Exhibit "F", attached hereto and incorporated herein by this reference, as
amended or restated from time to time.
1.80 Person. A natural person, corporation, partnership, limited liability
company, joint venture, association, estate, trust, government, governmental
subdivision or agency, other legal entity, or any combination thereof.
1.81 Phase I Environmental Inspection. A Phase I environmental assessment
of an Applicable Resort, including, without limitation, the relevant Land and
all improvements thereto. In the event that any Phase I Environmental Assessment
of an Applicable Resort is unacceptable to Lender for any reason or is not
available, Borrower shall provide Lender with a written report or reports
covering such Applicable Resort, prepared by one (1) or more appropriate
licensed professionals acceptable to Lender, which confirm(s):
(a) The absence of any Hazardous Materials of any kind or nature at
the Applicable Resort, except for commercially reasonable amounts thereof
commonly found at residential and resort properties in the Applicable
Jurisdiction; and
(b) That the applicable engineering firm has obtained, reviewed, and
included within its report a CERCLIS printout from the Environmental
Protection Agency (the "EPA"), statements from the EPA and other
applicable state and local authorities, and such other information as
Lender may reasonably require, all of which information shall confirm that
there is no known or suspected hazardous or toxic waste located at the
Applicable Resort or in such proximity thereto as to create a material
risk of contamination of all or any portion of the Collateral or any
Applicable Underlying Loan Collateral.
1.82 Pledged Consumer Note Receivable. A Consumer Note Receivable that has
been and remains pledged to Borrower by an Applicable Underlying Borrower
pursuant to the Applicable Underlying Loan Documents, and which has then been
pledged and remains pledged to Lender by Borrower pursuant to this Agreement or
any of the other Loan Documents.
1.83 Pledged Note Receivable. A Note Receivable that has been and remains pledged
------------------------
to Lender by Borrower, pursuant to this Agreement or any of the other Loan Documents.
1.84 Pledged Put and Reserve Agreement. A Put and Reserve Agreement that
has been and remains pledged or collaterally assigned to Lender by Borrower,
pursuant to this Agreement or any of the other Loan Documents.
1.85 Pre-Sales Consumer Note Receivable. Defined in Exhibit "K", attached hereto
and incorporated herein by this reference.
1.86 Prime Rate. The per annum rate of interest publicly announced, from
time to time, by Citibank, N.A., New York, New York ("Citibank") as the base (or
equivalent) rate of interest charged by Citibank to its largest and most
creditworthy commercial borrowers notwithstanding the fact that some borrowers
of Citibank make borrow from Citibank at rates less than the announced base
rate. If such bank shall, for any period, cease to announce or publish its prime
or reference rate, then Lender shall, during such period, determine the Prime
Rate based upon the prime or base rates announced or published by such other
bank as is reasonably acceptable to Borrower.
1.87 Purchased Consumer Note Receivable. A Consumer Note Receivable that
has been purchased by Borrower from an Applicable Qualified Seller and remains
owned by Borrower pursuant to the Applicable Underlying Purchase Documents, and
which has then been pledged and remains pledged to Lender by Borrower pursuant
to this Agreement or any of the other Loan Documents.
1.88 Purchaser. Any Person who purchases one or more Intervals and is the maker
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of a Consumer Note Receivable.
1.89 Put and Reserve Agreement. An agreement or agreements that are now or
hereafter made and executed by an Applicable Underlying Seller for the benefit
of Borrower, evidences the obligations of the Applying Underlying Seller to
repurchase Purchased Consumer Notes Receivable from Borrower in connection with
an Applicable Underlying Purchase or to replace such Consumer Notes Receivable,
evidences the right of Borrower to hold in reserve or defer payment of a portion
of the purchase price for Purchased Consumer Notes Receivable, and may be
secured in part by an Applicable Mortgage.
1.90 Qualified Developer. The developer of an interval ownership,
condominium, timeshare, or vacation ownership project, who is domiciled and has
his principal residence [or, in the case of a Person not a natural person, is
organized and has its principal place of business (or if it has no principal
place of business, its chief executive office)] in the United States, and the
creditworthiness for a receivables hypothecation loan or for a receivables
purchase and other qualifications of which are satisfactory to Lender, based
upon any factors that Lender deems relevant. No Person shall be deemed a
Qualified Developer unless and until Lender has so designated such Person in
writing.
1.91 Qualified Loan. A receivables/hypothecation loan which is made by
Borrower to a Qualified Developer in connection with a Qualified Resort, permits
the Qualified Developer to borrow not less than Five Million Dollars
($5,000,000) (which the Qualified Developer is reasonably expected to need), is
secured by any Lien on real property which secures any loan made to the
Qualified Developer and hypothecated under the RFI ADC Credit Facility and from
which the Intervals which are the subject of Consumer Notes Receivable being
hypothecated under the receivables/hypothecation loan have been created, and is
otherwise satisfactory to Lender, based upon any factors that Lender deems
relevant. No loan shall be deemed a Qualified Loan unless and until Lender has
so designated such loan in writing. By way of clarification, a Qualified Loan
does not need to at any time have an outstanding principal balance of Five
Million Dollars ($5,000,000) or more.
1.92 Qualified Purchase. A receivables purchase which is made by Borrower
from a Qualified Developer in connection with a Qualified Resort, permits the
Qualified Developer to sell to Borrower Consumer Notes Receivable for a cash
price not less than Five Million Dollars ($5,000,000) (which the Qualified
Developer is reasonably expected to need), is secured by any Lien on real
property which secures any loan made to the Qualified Developer and hypothecated
under the RFI ADC Credit Facility and from which the Intervals which are the
subject of Consumer Notes Receivable being purchased as part of the receivables
purchase transaction have been created, and is otherwise satisfactory to Lender,
based upon any factors that Lender deems relevant. No purchase shall be deemed a
Qualified Purchase unless and until Lender has so designated such purchase in
writing. By way of clarification, a Qualified Purchase does not need to at any
time have an outstanding unamortized investment by Borrower of Five Million
Dollars ($5,000,000) or more.
1.93 Qualified Resort. An interval ownership, condominium, timeshare
project, and/or vacation ownership project which consists of, among other
things, certain Land, Units, Common Elements, and Intervals, whether now
existing or hereafter added, in one (1) or more buildings or phases, and all
related Common Furnishings, easements, licenses, rights, interests, and other
appurtenances, as more fully described in the Applicable Declaration and the
other Applicable Timeshare Documents, located in the United States and is
otherwise satisfactory to Lender, based upon any factors that Lender deems
relevant. No project shall be deemed a Qualified Resort unless and until Lender
has so designated such project in writing.
1.94 Qualified Transaction. A Qualified Loan or a Qualified Purchase.
---------------------
1.95 Release Fee. A fee or amount, if any, required to be paid by an
Applicable Underlying Developer to Borrower in consideration for the release of
all or a portion of any Applicable Underlying Transaction Collateral from the
Lien of an Applicable Mortgage or any other Lien in favor of Borrower. For
purposes of this Agreement, the term "Release Fee" shall include any other
payments, however denominated, required to be made by an Applicable Underlying
Developer to Borrower upon the sale of an Interval at an Applicable Resort,
pursuant to the Applicable Underlying Transaction Documents.
1.96 RFI ADC Credit Facility. The revolving credit facility made available
to Borrower, as described in the RFI ADC Credit Facility Agreement and evidenced
and secured by the loan documents from time to time executed in connection
therewith.
1.97 RFI ADC Credit Facility Agreement. That Loan and Security Agreement
(ADC Loans Warehouse Facility) by and among Borrower and Lender (including the
exhibits and schedules hereto), as it may be amended, restated and/or replaced
from time to time.
1.98 RFI Credit Facilities. Collectively, the RFI ADC Credit Facility and the
Loan.
1.99 RFI Credit Facilities Agreements. Collectively, the RFI ADC Credit Facility
Agreement and this Agreement.
1.100 Servicing Agent. For so long as (a) no Event of Default has occurred
and (b) Lender, in its reasonable judgment, has not determined that such
Person's servicing systems and controls are inadequate to protect Lender in any
material way (and based upon an on-site inspection conducted by it prior to the
Closing Date, Lender acknowledges that such an inadequacy did not appear to
exist as of the completion of such inspection), Borrower or an Affiliate of
Borrower; and thereafter, such other Person as Lender engages, in its
discretion, at Borrower's sole cost and expense. Servicing Agent shall service
each Applicable Underlying Transaction, which shall include but not be limited
to the collection of all amounts owed Borrower by the Applicable Underlying
Developer, pursuant to the Applicable Underlying Transaction Documents, subject
to the terms, provisions, and conditions of Section 2 hereof and of the
Servicing Agreement and the Lockbox Agreement.
1.101 Servicing Agreement. An agreement by and among Lender, Borrower, and
Servicing Agent (if different from Borrower) in substantially the form of
Exhibit "G", attached hereto and incorporated herein by this reference, that
provides for the servicing of each Applicable Underlying Transaction.
1.102 Survey. An as-built survey of an Applicable Resort prepared in
accordance with the ALTA/ACSM 1992 Minimum Survey Requirements by a licensed
surveyor and certified by the applicable surveyor to the Applicable Underlying
Developer.
1.103 Underlying Guaranty. A document or instrument executed by an
Applicable Underlying Guarantor and delivered to Borrower, pursuant to which one
(1) or more Persons guarantees the absolute and unconditional payment and
performance of the Applicable Underlying Transaction and all amounts secured by
or under the Applicable Underlying Transaction Documents.
1.104 Unit. An apartment, condominium unit, or other structure that is
affixed to real property at an Applicable Resort and designed and available,
pursuant to applicable law, for use and occupancy as a vacation residence by one
(1) or more individuals, together with all related Common Elements, Common
Furnishings, easements, and other appurtenances thereto.
SECTION 2. THE LOAN.
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Lender hereby agrees to make the Loan, including Advances thereunder, in
accordance with all of the terms, provisions, and conditions hereof and of the
other Loan Documents.
2.1 Purposes. The proceeds of the Loan shall be used exclusively to enable
Borrower to make Qualified Loans to or Qualified Purchases from Qualified
Developers in connection with Qualified Resorts or to reimburse Borrower for
advances previously made under Qualified Loans to Qualified Developers in
connection with Qualified Resorts or for purchase payments previously made under
Qualified Purchases to Qualified Developers in connection with Qualified
Resorts.
2.2 Qualified Loans and Qualified Purchases. Lender shall have the right
to determine whether a particular loan constitutes a Qualified Loan or a
Qualified Purchase; and in connection therewith, Lender shall have the absolute
and unconditional right with respect to each loan or purchase that Borrower
proposes be deemed a Qualified Loan or a Qualified Purchase hereunder to conduct
its own due diligence prior to approving that loan or purchase as a Qualified
Loan or Qualified Purchase, as the case may be, the reasonable costs of which
shall be borne by Borrower. As part of such due diligence, Lender may, in its
discretion, make or cause to be made, at Borrower's sole cost and expense,
Lender's own physical inspection of the Applicable Resort and all contemplated
Applicable Underlying Transaction Collateral. No loan shall be deemed a
Qualified Loan or a Qualified Purchase hereunder unless and until Lender has so
designated it in writing.
2.3 Advances.
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(a) Borrowing Term. No Advances will be made by Lender hereunder after the
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last day of the Borrowing Term.
(b) Maximum Amount of Loan. Upon the terms and provisions and
subject to the conditions set forth in this Agreement, including but not limited
to Sections 1.46, 1.47 and 2.3(d) hereof, and provided that no Event of Default
then exists, Lender shall advance to Borrower, and Borrower may borrow, repay,
and reborrow, principal under the Loan in an amount not to exceed at any time
the lesser of (i) the aggregate amount of the Borrowing Base or (ii) the Maximum
Loan Amount; provided, however, that for purposes of this Section, the Borrowing
Base of any Applicable Underlying Transaction in connection with which (i) a
monthly payment (including without limitation, any payment due under a Pledged
Put and Reserve Agreement) is more than sixty (60) days' contractually past due
or (ii) an Event of Default listed in Section 7.2 hereof has occurred shall be
deemed zero. In the event that the proceeds of the Loan and any other amounts
required to be paid by Borrower hereunder are insufficient to pay all costs to
which it is contemplated hereunder that 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. The
proceeds of the Loan will be disbursed by Lender solely for the purposes set
forth in Section 2.1 hereof.
(c) Minimum Advance Amounts; Frequency of Advances. Without the
prior written consent of Lender, Advances shall (i) be in respect of Eligible
Notes Receivable that are secured in part by pledges of Eligible Consumer Notes
Receivable and collateral assignments of Interval Mortgages from the Applicable
Underlying Borrower to Borrower which are then collaterally assigned by Borrower
to Lender or in respect of Eligible Consumer Notes Receivable which are
Purchased Consumer Notes Receivable; (ii) occur no more frequently than four (4)
times in any calendar month; and (iii) shall be in minimum amounts of Fifty
Thousand Dollars ($50,000). Lender shall receive a fee in the amount of Five
Hundred Dollars ($500) for each funding after the second funding in any calendar
month. For purposes of clarification, if Borrower submits an Advance Request
based upon more than one Eligible Note Receivable, the requested Advance shall
for purposes of this Section 2.3(c) be deemed a single Advance.
(d) Maximum Amount Outstanding Under the Loan and Other Credit
Facilities. Under no circumstances (and irrespective of the aggregate amount of
the Borrowing Base) shall the sum of (i) the aggregate outstanding principal
balance as of a particular date of the Loan, the RFI ADC Credit Facility, any
and all other loans the initial advances of which are hereafter made by Lender
to Guarantor or to an Affiliate of Guarantor, plus (ii) the Combined Outstanding
Commitments, plus (iii) the RFI ADC Credit Facility Uncovered Cost of the Work
(as defined in the RFI ADC Credit Facility Agreement), plus (iv) the sum of the
Uncovered Cost of the Work (as defined in the RFI ADC Credit Facility Agreement)
with respect to any and all other loans the initial advances of which are
hereafter made by Lender to Guarantor or an Affiliate of Guarantor exceeds the
Maximum Credit Facilities Amount.
2.4 Interest Rate. The aggregate principal amount of all Advances that are
outstanding from time to time shall bear interest at a rate equal to the
Interest Rate. The outstanding principal balance of the Loan shall bear interest
in arrears as of Lender's wiring of funds through its actual receipt of
repayment of the Loan (if received by Lender later than 12 noon, E.S.T., then
interest accrual shall be through the next Business Day following such receipt).
Immediately upon the occurrence of an Event of Default, any and all principal
and other amounts owed Lender hereunder or pursuant to the Note or any of the
other Loan Documents may, in Lender's discretion, bear interest at the Default
Rate.
2.5 Payments. Borrower agrees punctually to pay or cause to be paid to
Lender, via wire transfer, all principal and interest due under the Note or
otherwise in respect of the Loan. Borrower shall make the following payments on
the Loan:
(a) Daily and Weekly. Upon the closing of each Applicable Underlying
Transaction, Borrower shall direct in writing and cause the Applicable
Underlying Developer and Applicable Underlying Guarantor: (i) to direct or
otherwise cause the Purchasers and makers of all Pledged Consumer Notes
Receivables and Purchased Consumer Notes Receivable to pay all monies due
thereunder to the Lockbox Agent in accordance with the terms of the Applicable
Underlying Transaction Documents; and (ii) to pay Lockbox Agent all interest,
principal, Release Fees, if any, prepayments (both voluntary and mandatory), and
other amounts of any and every description payable to Borrower by or on behalf
of such Applicable Underlying Developer or Applicable Underlying Guarantor, if
any, pursuant to the applicable Pledged Note Receivable, the Applicable Pledged
Put and Reserve Agreement or any other Applicable Underlying Transaction
Documents (hereinafter collectively referred to as the "Aggregate Lockbox
Collections"). The Aggregate Lockbox Collections shall be deposited by Lockbox
Agent into the lockbox account established and maintained by Lockbox Agent in
accordance with the provisions of the Lockbox Agreement (the "Lockbox Account").
Following any advance or payment by Borrower under an Applicable Underlying
Transaction to the Applicable Underlying Developer from which any Release Fees
and/or other amounts due Borrower from the Applicable Underlying Developer under
the Applicable Underlying Transaction Documents have been subtracted, Borrower
shall pay all such subtracted amounts, together with any additional amounts paid
to or otherwise received from time to time by Borrower in connection with an
Applicable Underlying Transaction, including but not limited to any amounts
received by Borrower upon its realization upon any Applicable Underlying
Transaction Collateral, directly to Lender (in the form so received, properly
endorsed to Lender, if appropriate). On each Business Day, Lockbox Agent shall
deposit into an account in the name of Lender and into which only proceeds of
the Pledged Notes Receivable, the Pledged Put and Reserve Agreements and the
Purchased Consumer Notes Receivable and the other Applicable Underlying Purchase
Property are deposited ("Collection Account") the Aggregate Lockbox Collections
then deposited in the Lockbox Account. On the last Business Day of each week,
Lockbox Agent shall remit, via wire transfer, all amounts then deposited in the
Collection Account directly to Lender in accordance with the terms of the
Lockbox Agreement.
(b) Final Payment. Notwithstanding any term, provision, or condition
hereof to the contrary, the entire outstanding principal balance of the Loan,
together with any and all accrued but unpaid interest thereon and all other
Obligations, shall immediately be paid via wire transfer by Borrower to Lender
and otherwise be satisfied in full on or before the earlier to occur of (i) the
occurrence of an Event of Default hereunder or (ii) the Maturity Date.
(c) Application of Payments. Notwithstanding anything in the Loan
Documents to the contrary, the amount of all payments or amounts received by
Lender with respect to the Loan shall be applied to the extent applicable under
the Loan Documents: (a) first, to accrued interest on the Loan through the date
of such payment, including any default interest; (b) then, to any late fees,
overdue risk assessments, examination fees and expenses, collection fees and
expenses and any other fees and expenses due to Lender under the Loan Documents
in connection with the Loan; and (c) last, the remaining balance, if any, to the
unpaid principal balance of the Loan; provided, however, while a Default exists,
each payment hereunder shall be applied to amounts owed to Lender by Borrower as
Lender in its discretion may determine. In calculating interest and applying
payments as set forth above: (a) interest on the Loan shall be calculated and
collected through the date payment is actually received by Lender; (b) interest
on the outstanding balance of the Loan shall be charged during any grace period
permitted under the Loan Documents; (c) at the end of each month, all past due
interest and other past due charges provided for under the Loan Documents with
respect to the Loan shall be added to the principal balance of the Loan; and (d)
to the extent that Borrower makes a payment or Lender receives any payment or
proceeds of the Collateral for Borrower's benefit that is subsequently
invalidated, set aside or required to be repaid to any other person or entity,
then, to such extent, the Obligations in connection with the Loan intended to be
satisfied shall be revived and continue as if such payment or proceeds had not
been received by Lender and Lender may adjust the balance of the Loan as Lender
deems appropriate under the circumstances. For purposes of this Section 2.5(c),
amounts held in the Lockbox Account and/or the Collection Account shall not be
deemed to have been received by Lender.
2.6 Prepayments.
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(a) Voluntary. Borrower may prepay the Loan, in whole or in part, without
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premium or penalty, at any time.
(b) Mandatory. If at any time and for any reason, the outstanding
unpaid principal balance of the Note exceeds the aggregate amount of the
Borrowing Base of (i) all Applicable Underlying Loans and Pledged Notes
Receivable and (ii) all Applicable Underlying Purchases, then, within ten (10)
days following Borrower's receipt of telecopied notice from Lender of the
occurrence of such event or, absent such telecopied notice, within fifteen (15)
days after the end of the calendar month in which such excess first occurred,
Borrower shall either (A) prepay the outstanding principal balance of the Note
in an amount equal to the difference between the outstanding principal balance
of the Note and the aggregate amount of the Borrowing Base of (1) all Applicable
Underlying Loans and Pledged Notes Receivable and (2) all Applicable Underlying
Purchases or (B) collaterally assign to Lender, all of Borrower's right, title,
and interest in and to additional Eligible Consumer Notes Receivable, as
collateral for the Pledged Notes Receivable or in substitution for other
Purchased Consumer Notes Receivable, generated from sales of Intervals at the
same Applicable Resort so that the outstanding principal balance of the Note is
equal to or less than the aggregate amount of (i) the Borrowing Base of all
Applicable Underlying Loans and Pledged Notes Receivable and (ii) all Applicable
Underlying Purchases. Any such pledge and delivery to Lender of additional
Eligible Consumer Notes Receivable shall comply with the document delivery and
recordation requirements set forth in Section 4.2 hereof and shall be
accompanied by Borrower's written certification to the effect that such
additional Consumer Notes Receivable are Eligible Consumer Notes Receivable and
that, after giving effect to the pledge to Lender of such additional Eligible
Consumer Notes Receivable, the outstanding principal balance of the Note is
equal to or less than the Borrowing Base of (i) all Applicable Underlying Loans
and Pledged Notes Receivable and (ii) all Applicable Underlying Purchases.
(c) Prepayment Premium. No prepayment premium or penalty shall be due
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Lender in connection with any prepayment of the Loan.
2.7 Guaranty. Payment and performance by Borrower of one hundred percent
(100%) of all of the Obligations shall be unconditionally guaranteed, jointly
and severally, by Guarantor.
SECTION 3. COLLATERAL.
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3.1 Grant of Security Interest. To secure the prompt and complete payment
and performance when due of all of the Obligations, for value received, Borrower
hereby unconditionally and irrevocably assigns, pledges, and grants to Lender a
continuing first priority Lien and security interest in and to the Collateral.
3.2 Security Interest in All Pledged Notes Receivable, Pledged Put and
Reserve Agreements and Purchased Consumer Notes Receivable. Notwithstanding that
Lender is obligated, subject to the terms and conditions set forth herein and in
the other Loan Documents, to make Advances only in respect of Eligible Notes
Receivable and Eligible Consumer Notes Receivable which are Purchased Consumer
Notes Receivable, Lender shall have a continuing first priority Lien and
security interest in and to all of the Pledged Notes Receivable, Pledged
Consumer Notes Receivable (by virtue of a collateral assignment to Lender of all
of Borrower's right, title, and interest thereto), Pledged Put and Reserve
Agreements and Purchased Consumer Notes Receivable and may collect and shall
receive all payments made under or in respect of all Pledged Notes Receivable,
Pledged Put and Reserve Agreements and Purchased Consumer Notes Receivable and
by virtue of a collateral assignment of all of Borrower's right, title, and
interest in and to the Pledged Consumer Notes Receivable and the Purchased
Consumer Notes Receivable, including Eligible Notes Receivable and Eligible
Consumer Notes Receivable that may become ineligible, until any of the same are
released by Lender, if at all, pursuant to Section 11.11 hereof.
3.3 Financing Statements. Borrower agrees, at its own expense, to execute
the UCC-1 and UCC-3 financing statements provided for by the Code, together with
any and all other appropriate instruments and documents, and to take such other
action as may be required to perfect and to continue the perfection of Lender's
first priority Liens and security interests in the Collateral. In addition,
unless prohibited by law, Borrower hereby authorizes Lender to execute and file
any such financing statements on Borrower's behalf.
3.4 Location of Collateral. Except for Encumbered Personal Property that
is replaced in the ordinary course of business, all tangible Collateral (other
than Collateral delivered to Lender or Custodian) shall remain, at all times,
within the Applicable Resort at which it is located on the Closing Date, and
Borrower may not transfer or cause the transfer of any such Collateral from such
premises without the prior written approval of Lender.
3.5 Protection of Collateral; Reimbursement. The portion of the Collateral
consisting of (a) the original Pledged Notes Receivable; (b) the original
Pledged Put and Reserve Agreements; (c) the original Applicable Mortgages; and
(d) all other original Loan Documents shall be delivered, at Borrower's expense,
to Lender at its address as set forth in Section 11.1 hereof and, except as
otherwise expressly provided herein to the contrary, held in Lender's
possession, custody, and control until all of the Obligations have been fully
satisfied. The portion of the Collateral consisting of (i) the original Pledged
Consumer Notes Receivable and the original Purchased Consumer Notes Receivable;
(ii) true copies of fully executed Interval Mortgages, originals of which shall
be delivered to Lender promptly following the recordation or registration
thereof; (iii) the original purchase contract (including any addenda thereto)
related to such Pledged Consumer Notes Receivable and Interval Mortgages; and
(iv) originals or true copies of the related truth-in-lending disclosure
statements and, if required by Lender, loan applications, Interval deeds, the
related Purchaser's acknowledgments, receipts, owner's policies of title
insurance, Payment Authorization Agreements, and exchange company applications
and disclosures, shall be delivered, at Borrower's expense, to Lender at its
address set forth in Section 11.1 hereof and, except as otherwise expressly
provided herein to the contrary, held in Lender's possession, custody, and
control until all of the Obligations have been fully satisfied. Alternatively,
Lender may elect for Custodian to maintain possession, custody, and control of
all such documents and instruments during such period of time. Each original
Pledged Note Receivable, original Pledged Consumer Note Receivable and original
Purchased Consumer Note Receivable delivered to Lender shall be duly endorsed by
use of an allonge with the words: "Pay to the order of FINOVA Capital
Corporation, with recourse to the maker of the promissory note to which this
allonge is attached but without recourse to Resort Funding, Inc., except to the
extent provided in that certain Loan and Security Agreement dated as of
September ____, 1999, by and among FINOVA Capital Corporation, and Resort
Funding, Inc." Each original Pledged Consumer Note Receivable and original
Purchased Consumer Note Receivable, prior to its endorsement by Borrower to
Lender, shall be duly endorsed in a manner approved by Lender by the Applicable
Underlying Developer to Borrower. The portion of the Collateral delivered to
Lender or Custodian as described above shall be segregated by Lender or
Custodian, as the case may be, and stored in a secure, fire-resistant filing
cabinet, access to which is limited in a commercially reasonable manner.
Borrower agrees that such storage is and shall be deemed to constitute
reasonable care by Lender with respect to such Collateral. Except to the extent
expressly included in the Custodian's fee as set forth in the Custodial
Agreement, all insurance and other expenses of protecting the Collateral,
including, without limitation, storing, warehousing, insuring, handling,
maintaining, and shipping the Collateral, and any and all excise, property,
intangible, sales, and use taxes imposed by any state, federal, or local
governmental authority on any of the Collateral or in respect of the sale
thereof shall be paid by Borrower. Any and all other amounts for which Borrower
may become liable hereunder and all costs and expenses (including attorneys' and
paralegals' fees, legal expenses, and court costs) that Lender may incur in
enforcing or protecting its Lien on, or rights and interest in, the Collateral
or any of its rights or remedies under this Agreement or any other Loan Document
or in respect to any of the transactions to be had hereunder or thereunder,
until paid by Borrower to Lender with interest at the Default Rate, shall be
included among the Obligations and, as such, shall be secured by all of the
Collateral. Provided that Lender or Custodian retains the original Pledged Notes
Receivable, original Pledged Put and Reserve Agreements, Applicable Mortgages,
original Pledged Consumer Notes Receivable and original Purchased Consumer Notes
Receivable delivered to it in a secure, fire-resistant filing cabinet as
provided above, Lender shall not be liable or responsible in any way for the
safekeeping of any of the Collateral or for any loss or damage thereto or for
any diminution in the value thereof, or for any act or default of any
warehouseman, carrier, forwarding agency, Lockbox Agent, Custodian, or any other
Person whomsoever, excluding damages or losses that occur as a result of
Lender's gross negligence or willful misconduct.
3.6 Cross-Collateralization and Default. The Collateral shall secure all
of the Obligations as well as Borrower's obligations pursuant to the RFI ADC
Credit Facility and the obligations of Guarantor and any and all Affiliates of
Guarantor under any loan(s) made by Lender to such Person(s); and all Liens,
pledges, assignments, mortgages, security interests, and collateral granted to
or for the benefit of Lender pursuant thereto or any other related documents or
instruments shall also secure the Obligations. In addition, the Loan, the RFI
ADC Credit Facility and any other loan made by Lender to Guarantor or to any
Affiliate of Guarantor shall be cross-defaulted such that (a) any "Default" and
"Event of Default" (as those terms are defined in RFI ADC Credit Facility
Agreement and/or loan documents executed in connection with another loan made by
Lender to Guarantor or any Affiliate of Guarantor) and (b) any act or event
which, under the terms of the RFI ADC Credit Facility and/or loan documents
executed in connection with another loan made by Lender to Guarantor or any
Affiliate of Guarantor, either immediately or with notice and/or the passage of
time permits Lender to cease making advances under such loan and/or to
accelerate repayment of such loan shall constitute a Default or an Event of
Default, respectively, hereunder, and vice versa.
SECTION 4. CONDITIONS PRECEDENT TO CLOSING AND FUNDING PROCEDURES.
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The obligation of Lender to enter into this Agreement and to make any
Advances shall be subject to the complete satisfaction of each of the conditions
precedent set forth below and elsewhere in the Loan Documents:
4.1 The Loan. On or prior to the Closing Date, but in no event later than
---------
October 31, 1999:
(a) Execution and Delivery. Borrower and Guarantor shall execute and
cause to be notarized, witnessed, and attested, as appropriate, and
delivered to Lender the Loan Documents, together with such additional
documents and certifications as Lender and its counsel may reasonably
require in order to ensure that all conditions precedent to the closing of
the Loan and the making of Advances hereunder have been satisfied in all
respects.
(b) Opinion of Borrower's Counsel. Lender shall have received from
duly licensed counsel for Borrower and Guarantor acceptable to Lender such
legal opinions in form and substance satisfactory to Lender, dated as of
the Closing Date, as may be required by Lender, in its reasonable
discretion.
(c) Representations, Warranties, Covenants, and Agreements. The
representations and warranties contained in the Loan Documents and in any
certificates delivered to Lender in connection with the closing shall be
true and correct in all material respects, and all covenants and
agreements required to have been complied with and performed by Borrower
shall have been fully complied with and performed to the satisfaction of
Lender.
(d) No Prohibitions. Neither Borrower nor Guarantor shall have taken
----------------
any action or permitted any condition to exist that would have been
prohibited by any provision of this Agreement.
(e) Borrower's and Guarantor's Background Documents. Borrower shall
-------------------------------------------------
have delivered to Lender, and Lender shall have approved each of the
following:
(i) Borrower's and Guarantor's Organizational Documents.
Copies of Borrower's and Guarantor's organizational documents,
including but not limited to their respective articles of
incorporation and bylaws, together with any amendments thereto,
certified to be true and complete by Borrower's and Guarantor's
Secretaries, respectively.
(ii) Good Standing Certificates. Current good standing
certificates issued by the Delaware Secretary of State and the New
York Secretary of State (or other appropriate state officer) for
Borrower and by the Delaware Secretary of State for Guarantor.
(iii) Resolutions. Certified resolutions of Borrower's and
Guarantor's boards of directors authorizing the execution of all
Loan Documents and the performance of all Obligations thereunder.
(f) Financial Statements. Lender shall have received and approved
the financial statements for Borrower and Guarantor for the period ending
June 30, 1999 and the other Financial Statements required pursuant hereto
to be delivered to Lender, or otherwise required by Lender, for Borrower
and Guarantor, all in form and substance satisfactory to Lender.
(g) Proceedings Satisfactory. All actions taken in connection with
the execution and delivery of the Loan Documents, and all documents and
papers related thereto, shall be completely satisfactory to Lender and its
counsel. Lender and its counsel shall have received copies of all such
documents and papers as Lender or its counsel may reasonably request in
connection therewith, all in form and substance satisfactory to Lender and
its counsel.
(h) Expenses. Borrower shall have paid all fees, expenses, and other
amounts required to be paid prior to or on the Closing Date, pursuant to
this Agreement.
4.2 Applicable Underlying Transactions. At least ten (10) Business Days
prior to the date of each Initial Underlying Transaction Advance, Borrower shall
deliver to Lender and Servicing Agent a sworn written certificate, in form and
content satisfactory to Lender, confirming, to the extent applicable, that:
(a) Applicable Underlying Transaction Documents. The Applicable
Underlying Developer and the Applicable Underlying Guarantor have executed
and delivered to Borrower the Applicable Underlying Transaction Documents,
which Lender has reviewed and approved in writing.
(b) Title Policies. To the extent available and commonly required by
lenders or receivables purchasers in the Applicable Jurisdiction in
connection with transactions similar to the Applicable Underlying
Transaction, the Applicable Underlying Developer has delivered to Borrower
a commitment to issue an ALTA extended coverage lender's policy of title
insurance insuring in favor of Borrower, together with its successors and
assigns, including but not limited to Lender, to the extent of its
interest in the Applicable Underlying Transaction, the first priority of
the Lien of each applicable Interval Mortgage in and to each applicable
Encumbered Interval which is coupled with an estate in real property and
to which the applicable Purchaser is entitled to a deed before its
purchase price is paid in full, without exception for filed or unfiled
mechanics' liens or claims or for matters that an accurate survey would
disclose, subject only to such exceptions and conditions to title as
Borrower and Lender shall have approved in writing and such affirmative
coverage as Borrower or Lender deems reasonably necessary (the "Title
Policy"). Such Title Policy shall be in an amount not less than the
original principal amount of the applicable Note Receivable or the
original purchase payment made under the Applicable Underlying Purchase,
as the case may be, and be issued by a title insurance company
satisfactory to Borrower and Lender in all respects (the "Title Insurance
Company"). Final Title Policies delivered at the time of each advance of
or payment under the Applicable Underlying Transaction must insure that
each applicable Interval Mortgage creates a first priority Lien in favor
of Lender, to the extent of its interest in the Applicable Underlying
Transaction, and Borrower, together with its successors and assigns, in
and to the applicable Encumbered Interval which is coupled with an estate
in real property and to which the applicable Purchaser is entitled to a
deed before its purchase price is paid in full, with such exceptions and
conditions to title as Borrower and Lender shall have approved in writing.
Each Title Policy shall contain such affirmative coverage as Lender
deems reasonably necessary, including but not limited to an affirmative
statement that the Title Policy insures Borrower, together with its
successors and assigns, including but not limited to Lender to the extent
of its interest in the Applicable Underlying Transaction, against all
mechanics' and materialmen's liens arising from or out of construction of
the Applicable Resort, and, to the extent available and commonly required
by lenders and receivables purchasers in the Applicable Jurisdiction,
shall contain endorsements in form and content acceptable to Lender: (A)
insuring against matters that would be disclosed on an accurate survey of
the Land; (B) insuring that no building restriction or similar exception
to title disclosed on the Title Policy has been violated and that any
violation thereof would not create or result in any reversion, reverter,
or forfeiture of title; (C) a zoning endorsement in the form typically
issued in the Applicable Jurisdiction; and (D) insuring over any
environmental superlien or similar lien upon all or any portion of the
Applicable Resort. Such Title Policy shall provide that Borrower and
Lender, to the extent of its interest in the Applicable Underlying
Transaction, shall receive an endorsement to the Title Policy on the date
of each advance of or payment under the Applicable Underlying Transaction:
(i) indicating that since the date of the immediately preceding advance,
there has been no change in the state of title and no mechanics' or
materialmen's lien, claim, or lien or similar notice has been filed
against any of the property covered by the Title Policy; (ii) updating the
Title Policy to the date of such advance or payment; and (iii) increasing
the coverage of the Title Policy by an amount equal to the amount of such
advance or payment if the Title Policy does not by its own terms provide
for such an increase. The condition of title to all Applicable Underlying
Transaction Collateral must be satisfactory to Lender in all respects, as
a condition precedent to Lender's obligation to make any Advances
hereunder in respect of the Applicable Underlying Transaction that is
secured by Borrower's Lien in and to such Applicable Underlying
Transaction Collateral. In the event that Lender has received an interest
in an Applicable Mortgage pursuant to Section 1.45(d) hereof, the
references in this paragraph to "Interval Mortgage" shall be deemed to
apply instead to such Applicable Mortgage.
In lieu of the Title Policy required by this Section, Lender may
accept a title opinion rendered by a completely independent attorney for
the Applicable Underlying Developer which fully satisfies all of the
general requirements of this Section.
Notwithstanding anything herein to the contrary, Lender may require
that it be named as an insured on each Title Policy of title insurance
insuring Borrower's interest in an Interval Mortgage, even if a Title
Policy is not required with respect to such Interval Mortgage.
(c) Opinions of Applicable Underlying Developer's Counsel. Borrower
has received from counsel for the Applicable Underlying Developer and the
Applicable Underlying Guarantor, licensed in the Applicable Jurisdiction
and acceptable to Borrower and Lender, legal opinions in form and
substance satisfactory to Borrower and Lender, dated as of the date of
closing of the Applicable Underlying Transaction, covering such items as
may be required by Borrower and Lender, including, without limitation,
that the Applicable Underlying Transaction Documents are valid, binding,
and enforceable in accordance with their terms and that they do not
violate any applicable usury or other Applicable Laws. Each such legal
opinion shall also be addressed to Lender and expressly state that it may
be relied upon by Lender for any and all purposes.
(d) Applicable Underlying Transaction Background Documents. The
Applicable Underlying Developer has delivered to Borrower and Borrower has
approved each of the following (to the extent that Borrower has previously
delivered any of these documents with respect to the Applicable Underlying
Developer or the Applicable Resort in connection with any other loan under
the RFI ADC Credit Facility Agreement or this Agreement, Lender may waive
delivery in connection with the Applicable Underlying Transaction):
(i) Applicable Underlying Developer's and Applicable
Underlying Guarantor's Organizational Documents. Copies of the
Applicable Underlying Developer's and the Applicable Underlying
Guarantor's organizational documents, including but not limited to
their respective articles of incorporation, bylaws, partnership
agreement, and other documents relevant to the form of business
organization of such Persons, as applicable, together with any
amendments thereto, certified to be true and complete by the
Applicable Underlying Developer's and the Applicable Underlying
Guarantor's Secretary or other authorized representative.
(ii) Good Standing Certificates. Current good standing
certificates issued by the appropriate Secretaries of State (or
other appropriate state officers) for the Applicable Underlying
Developer and the Applicable Underlying Guarantor.
(iii) Resolutions. Certified resolutions of the Applicable
Underlying Developer's and Applicable Underlying Guarantor's boards
of directors or general partners, as applicable, or such other
evidence of authority as is appropriate for the Applicable
Underlying Developer's and Applicable Underlying Guarantor's form of
business organization, authorizing the execution of all Applicable
Underlying Transaction Documents and the performance of all
obligations of the Applicable Underlying Developer and Applicable
Underlying Guarantor thereunder.
(iv) Survey. An as-built survey satisfactory to Borrower and
Lender and prepared by a licensed surveyor satisfactory to Borrower,
Lender and the Title Insurance Company in accordance with Borrower's
requirements, of the Applicable Resort's Land, showing the location
and dimensions of all Units, Common Elements, and other improvements
thereto and indicating the routes of ingress and egress for public
access to the Applicable Resort, all utility lines, walks, drives,
recorded or visible easements and rights-of-way on such Land, and
showing that there are no encroachments, improvements, projections,
or easements (recorded or unrecorded) on the property lines. The
survey shall certify the acreage of the Land and shall indicate
whether the Land is located within any flood hazard area. The survey
must be prepared in accordance with the standards set forth by
ALTA/ACSM and those of any and all surveyors' bureaus or
associations of the Applicable Jurisdiction as well as any and all
Applicable Laws and must be certified to Borrower, Lender and the
Title Insurance Company. The surveyor's certificate placed on the
survey shall include a statement that said survey locates any and
all such items set forth as exceptions in the Title Policy as
Borrower may require, a legal description of the Land and otherwise
satisfy all of Borrower's and Lender's survey requirements, and
shall include any other information required by Lender, Borrower or
the Title Insurance Company.
(v Environmental Report. An environmental report or
----------------------
reports prepared by a Person satisfactory to Lender and covering
the Applicable Resort confirming (to the extent relevant, in
Lender's reasonable determination):
(A0 The absence of Hazardous Materials on, under, or
affecting the Land or any other real property or personal
property comprising the Applicable Resort, except for
commercially reasonable amounts thereof commonly found at
residential and resort properties in the Applicable
Jurisdiction;
(B0 That the Person preparing the report has obtained,
reviewed, and included within its report a CERCLIS printout
from the Environmental Protection Agency (the "EPA"),
statements from the EPA and other applicable state and local
authorities, and such other information as Borrower or Lender
may reasonably require, including, without limitation, a Phase
I Environmental Inspection, all of which information shall
confirm that there are no known or suspected Hazardous
Materials located at, used or stored on, or transported to or
from the Applicable Resort or in such proximity thereto as to
create a material risk of contamination of any of the
Applicable Resort or any of the Applicable Underlying
Transaction Collateral, except for commercially reasonable
amounts thereof commonly found at residential and resort
properties in the Applicable Jurisdiction;
(C0 The absence of radon gas at the Applicable Resort,
including all of the Units, or, if radon gas is found to be
present in any part of the Applicable Resort or the Units,
that such presence is of a nature or magnitude so as to be
fully in compliance with applicable standards under the
Environmental Laws and all other applicable laws or standards;
and
(D0 The absence of friable asbestos within the Units,
Common Elements, or elsewhere at the Applicable Resort or, if
asbestos is found to be present in any part of the Applicable
Resort, that such presence is of a nature or magnitude that is
able to be removed by a licensed removal contractor for a
guaranteed maximum sum satisfactory to Borrower and Lender.
(e Evidence of Insurance. Borrower has received certified copies of
all insurance policies and endorsements thereto or other evidence
satisfactory to Borrower and Lender, in the discretion of each, relating
to the Applicable Resort, including but not limited to the Encumbered
Intervals. In addition, Borrower has received written evidence that the
Applicable Underlying Developer has obtained and is maintaining or has
caused the Applicable Timeshare Owners' Association to obtain and maintain
all policies of insurance required by and in accordance with Section
6.1(c) hereof, including but not limited to copies of the most current
paid insurance premium invoices for such policies.
(f Applicable Laws. Borrower has received evidence satisfactory to
Borrower and Lender that all Encumbered Intervals at the Applicable Resort
are and will be in compliance with all applicable zoning, building, and
other Applicable Laws in connection with the construction, development,
establishment, and operation of the Applicable Resort (at the applicable
Unit density) and the sale, use for timeshare purposes, marketing, and
occupancy of Units and Intervals thereat.
(g Litigation. Borrower has received evidence satisfactory to
Borrower and Lender that there exists no pending or threatened bankruptcy,
foreclosure, or other material litigation or judgments outstanding against
or with respect to the Applicable Resort, all or any portion of the
Applicable Underlying Transaction Collateral, the Applicable Underlying
Developer, or the Applicable Underlying Guarantor (each a "Material
Party"). The term "other material litigation" as used herein shall not
include matters in which (i) a Material Party is a plaintiff and no
counterclaim is pending; or (ii) Borrower and Lender determine, in their
discretion, that such litigation is immaterial due to settlement,
insurance coverage, frivolity, or amount or nature of claim. Borrower
shall have obtained an independent search, at Borrower's or the Applicable
Underlying Developer's expense, confirming that no such bankruptcy,
foreclosure action, or other material litigation or judgment exists.
(h Code/Other Searches. Borrower has obtained such searches of the
applicable public records as it deems necessary under all Applicable Laws
to verify that it has a first and prior perfected Lien and security
interest covering all of the Applicable Underlying Transaction Collateral
and that Lender has a first and prior perfected lien and security interest
covering the Applicable Underlying Purchase Property.
(i Taxes and Assessments. Borrower has received copies of the most
current tax bills related to the Applicable Resort, together with evidence
satisfactory to it that all taxes and assessments owed by or for which the
Applicable Underlying Developer or the Applicable Timeshare Owners'
Association is responsible for collection have been paid, which taxes and
assessments include, without limitation, sales taxes, room occupancy
taxes, payroll taxes, personal property taxes, excise taxes, intangible
taxes, real property taxes, income taxes, and any assessments related to
the Applicable Resort and/or the Units or Intervals thereat. Borrower
shall also have received information satisfactory to Borrower and Lender
disclosing the tax identification numbers, tax rates, estimated tax
values, assessment ratios, and estimated assessment values or amounts with
respect to the Applicable Resort and the Land and the identities of the
taxing authorities having jurisdiction over the Land and the Applicable
Resort as well as the instrumentalities and entities having the power and
jurisdiction to impose assessments against the Land or the Applicable
Resort.
(j Financial Statements. Borrower has received the financial
statements required by the Applicable Underlying Transaction Documents to
be delivered to Borrower, or otherwise required by Borrower, for the
Applicable Underlying Developer and the Applicable Underlying Guarantor,
all in form and substance satisfactory to Borrower and Lender.
(k Interval Sales. To the extent applicable, Borrower has received
written evidence to the effect that the Applicable Underlying Developer
has complied in all respects with all Applicable Laws relating to the
marketing and sale of Intervals, including but not limited to any
Encumbered Intervals, at the Applicable Resort, including but not limited
to timeshare registration statutes, rules, and regulations.
(l Management and Property Contract. Borrower has received a copy of
the management contract for the Applicable Resort (the "Management
Contract") and Borrower and Lender have determined to their mutual
satisfaction that the Applicable Resort is being managed by a professional
management company acceptable to Borrower and Lender.
(m Site Inspection. Lender shall have conducted a site inspection
----------------
of the Applicable Resort, the results of which shall be satisfactory to it.
(n Miscellaneous. Such other matters as Lender shall reasonably
-------------
require.
True copies or, to the extent required hereby, originals of all of the
above-referenced documents, instruments, forms, opinions, and other materials
shall be delivered to Servicing Agent, either prior to or contemporaneously with
Borrower's execution and delivery to Lender of the sworn written certificate
required by this Section 4.2. Servicing Agent's written acknowledgment of
receipt and recommendation of approval of each such item is an absolute
condition precedent to Lender's obligation to make any Advances hereunder in
respect of the Applicable Underlying Transaction(s) to which Borrower's Initial
Underlying Transaction Request and any subsequent Advance Requests pertain.
4.3 Funding Procedures. Subject to Section 2.3 hereof, from time to time
during the Borrowing Term, Borrower may submit to Lender a written request for
an Advance hereunder (hereinafter sometimes called an "Advance Request") in
substantially the form of Exhibit "H", attached hereto and incorporated herein
by this reference. Provided that no Event of Default hereunder then exists, each
Advance approved by Lender and Servicing Agent shall be made within ten (10)
Business Days following the last to occur of (a) Lender's receipt of the
applicable Advance Request and all items required to be submitted to Lender
hereunder, including but not limited to those items referenced in this Section
4.3 (to the extent applicable); (b) Servicing Agent's written notification to
Lender that all items submitted to Servicing Agent for its review pursuant
hereto and the Servicing Agreement are acceptable; and (c) Lender's receipt of a
written certification from Custodian that confirms that Custodian has in its
possession each of the documents, instruments, and other items required to be
delivered to Custodian pursuant to Section 3.5 hereof (unless Lender has elected
to take possession of such documents, instruments, and other items itself).
In particular, the obligation of Lender to make any Advance hereunder
shall be subject to the satisfaction of all of the following conditions
precedent:
(a Requests for Advances. Each Advance Request shall:
(i Be in writing;
(ii Be accompanied by a sworn written certificate containing
all of the certifications required to be included in the certificate
described in Section 4.2 hereof and dated as of the date of such
Advance Request;
(iii Specify the principal amount of the Advance requested,
and designate the Applicable Underlying Transaction(s) to which the
proceeds of such Advance pertain;
(iv Certify the amount of the then current Borrowing Base
of the Applicable Underlying Transaction(s) in question;
(v Confirm that all representations and warranties of Borrower
contained in this Agreement are true and correct as of the date of
the Advance Request and, after giving effect to the making of the
requested Advance, will be true and correct as of the date on which
the requested Advance is to be made;
(vi State that no Default exists as of the date of the Advance
Request and, after giving effect to the making of such requested
Advance, no Default would exist as of the date on which the
requested Advance is to be made;
(vii Be delivered to the office of Lender as set forth in
Section 11.1 hereof and to Servicing Agent at its address as set
forth in the Servicing Agreement at least ten (10) Business Days
prior to the date of the requested Advance;
(viii Be signed by a duly authorized officer of
Borrower;
(ix As to each Applicable Underlying Transaction in respect of
which the requested Advance is sought, contain Borrower's sworn
written certificate to the effect that, to the extent applicable:
(A0 It has received no notice of any asserted or
threatened defense, offset, counterclaim, discount, or
allowance in respect of each Consumer Note Receivable to be
pledged to Lender through a collateral assignment of all of
Borrower's right, title, and interest therein in connection
with such requested Advance or in respect of any Pledged
Consumer Notes Receivable or Purchased Consumer Notes
Receivable then pledged to Lender through such a collateral
assignment;
(B0 It has received no notice of any asserted or
threatened defense, offset, counterclaim, discount, or
allowance in respect of any Pledged Note Receivable or Pledged
Put and Reserve Agreement; and
(C0 It has received such additional items as Lender
shall reasonably require, including, without limitation, an
aging report of the Pledged Consumer Notes Receivable and the
Purchased Consumer Notes Receivable and a delinquency report
showing which Consumer Notes Receivable for the subject
Advance are more than thirty (30) days' contractually past due
and the duration of each delinquency. Both reports shall be in
form and substance satisfactory to the Lender.
(b Review and Approval by Servicing Agent. Each and every item
listed in Section 4.3(a) hereof, together with true copies of all
documents, instruments, forms, certificates, opinions, and other materials
received by Borrower from an Applicable Underlying Developer in connection
with a request for an advance or payment under an Applicable Underlying
Transaction has been delivered to Servicing Agent by Borrower, and
Servicing Agent has reviewed same and provided Lender with its written
acknowledgment of receipt, its recommendation of approval of each such
item, and its opinion concerning the complete satisfaction of any and all
requirements and conditions precedent to Advances hereunder in respect of
the Applicable Underlying Transaction.
(c Other Conditions. In addition to the other conditions set forth
in this Agreement, the making of each Advance under the Loan shall be
subject to the satisfaction of all of the following conditions as of the
date of such Advance:
(i All of the conditions set forth in this Agreement and the
other Loan Documents have been fully satisfied by Borrower,
including but not limited to the proper recordation or registration
in the Applicable Jurisdictions, pursuant to all Applicable Laws, of
the Pledges and Assignments of Notes Receivable and Applicable
Mortgages, assigning to Lender all of Borrower's right, title and
interest in and to each such Pledged Note Receivable, the related
Applicable Mortgage and other Applicable Underlying Loan Documents
and Applicable Underlying Loan Collateral not covered by an
assignment described below; the Pledges and Assignments of Put and
Reserve Agreements and Applicable Mortgages, assigning to Lender all
of Borrower's right, title and interest in and to each such Pledged
Put and Reserve Agreement and the related Applicable Mortgages and
other Underlying Applicable Purchase Documents and Applicable
Underlying Purchase Property not covered by an Assignment described
below; and the Pledges and Assignments of Consumer Notes Receivable
and Interval Mortgages for each Applicable Underlying Loan,
assigning to Lender all of Borrower's right, title and interest in
and to each such Pledged Consumer Note Receivable and the related
Interval Mortgage; the Pledges and Assignments of Consumer Notes
Receivable and Interval Mortgages for each Applicable Underlying
Purchase, assigning to Lender all of Borrower's right, title and
interest in and to each such Purchased Consumer Note Receivable
within the Applicable Underlying Consumer Notes Receivable Purchase
Portfolio for the Applicable Underlying Purchase and the related
Interval Mortgage; and the filing of all appropriate UCC-1 and UCC-3
financing statements in accordance with the provisions of the Code,
this Agreement, and the other Loan Documents (or the deposit of all
such documents and instruments in escrow with the Title Insurance
Company, if appropriate);
(ii No Default exists immediately prior to the making of such
requested Advance or, after giving effect thereto, immediately after
the making of such requested Advance;
(iii Each document, instrument, contract, and agreement
required to have been executed and delivered in connection with any
prior Advance is consistent with the terms of this Agreement and
remains in full force and effect;
(iv The date on which such requested Advance is to be
made is a Business Day;
(v Advances shall be made not more often than four (4) times
any calendar month and not more often than on a weekly basis;
(vi Lender has determined that the requested Advance will be
in compliance with Sections 2.3(b) and (d) hereof, that each Pledged
Note Receivable as to which such Advance is sought remains an
Eligible Note Receivable hereunder and is not in excess of the
Borrowing Base therefor and that each Applicable Underlying Purchase
as to which such Advance is sought remains an Eligible Purchase
Transaction hereunder and is not in excess of the Borrowing Base
therefor;
(vii All representations and warranties contained herein, in
the other Loan Documents, and in any certificates delivered to
Lender in connection with the Loan are true and correct in all
material respects;
(viii Lender has received evidence satisfactory to Lender, in
its reasonable discretion, that the Applicable Resort, the
Applicable Underlying Transaction Collateral, the Applicable
Underlying Purchase Property and the Applicable Underlying Developer
are in compliance with all Applicable Laws; and
(ix The Interval Mortgages which encumber Intervals which are
coupled with an estate in real property and to which the Purchasers
are entitled to the delivery of deeds before the purchase price for
the Interval has been paid in full, the collateral assignments
thereof to Borrower from the Applicable Underlying Developer and to
Lender from Borrower and the UCC financing statements from the
Applicable Underlying Developer to Borrower and from Borrower to
Lender shall each have been duly recorded or registered in the
Applicable Jurisdiction in accordance with all Applicable Laws. In
addition, if there are Interval Mortgages which have been recorded,
registered, filed or indexed but were not required to be recorded or
registered pursuant to the provisions of the preceding sentence, the
collateral assignments thereof to Borrower from the Applicable
Underlying Developer and to Lender from Borrower shall be similarly
recorded, registered, filed or indexed in the Applicable
Jurisdiction in accordance with Applicable Laws. All of Borrower's
right, title, and interest in and to all Interval Mortgages, Pledged
Consumer Notes Receivable and Purchased Consumer Notes Receivable
assigned by Borrower to Lender hereunder must have evidence thereon
of payment of all required documentary stamps and intangible taxes,
if any are required. The funding of the requested Advance, delivery
of the Collateral, issuance of the Title Policy, if any, and
recording or registration of the collateral assignments or any
releases and the UCC financing statements may, in Lender's
discretion, be effected by way of an escrow arrangement with the
Title Insurance Company or other fiduciary, the form and substance
of which shall be satisfactory to Lender.
(d Payments by Lender. Lender may, at any time and without a request
therefor having been submitted by Borrower, advance Loan proceeds for the
purpose of paying interest on the Loan, real estate taxes, insurance
premiums, fees and expenses of Lender's counsel, or to cure an Event of
Default. After the occurrence of a Default, Lender may, as to an
Applicable Underlying Transaction, perform any of Borrower's undertakings
under the Applicable Underlying Transaction Documents. Notwithstanding the
foregoing provisions of this Section 4.3(d) and except as otherwise
provided herein to the contrary, Lender shall furnish Borrower with
written notice of Lender's intent to take any of the foregoing actions and
afford Borrower ten (10) days in which to take such actions itself prior
to Lender's doing so.
4.4 Advances Do Not Constitute a Waiver. No Advance hereunder shall constitute a
-----------------------------------
waiver of any condition to Lender's obligation to make further Advances hereunder.
SECTION 5. GENERAL REPRESENTATIONS AND WARRANTIES.
--------------------------------------
Borrower hereby represents and warrants to Lender as follows:
5.1 Organization, Standing, Qualification. Borrower (a) is a corporation
duly organized, validly existing, and in good standing under the laws of the
State of Delaware and as a foreign corporation 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, deliver, and perform its obligations under the Loan Documents.
5.2 Authorization, Enforceability, Etc.
(a The execution, delivery and performance by Borrower of the Loan
Documents has been duly authorized by all necessary corporate actions by
Borrower and does not and will not (i) violate any provision of Borrower's
articles of incorporation, bylaws, or any agreement, law, rule, regulation,
order, writ, judgment, injunction, decree, determination, or award presently in
effect to which 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
Borrower other than Liens in favor of Lender; or (iii) result in a breach of, or
constitute a default by Borrower under, any indenture, loan, or credit agreement
or any other agreement, document, instrument, or certificate to which Borrower
is a party or by which it or any of its assets are bound or affected, including
but not limited to any loan from or agreement of any type with a third party
lender.
(b No approval, authorization, order, license, permit, franchise, or
consent of, or registration, declaration, qualification, or filing with, any
governmental authority or other Person is required in connection with the
execution, delivery, and performance by Borrower of any of the Loan Documents.
(c The Loan Documents constitute legal, valid, and binding
obligations of Borrower, enforceable against Borrower in accordance with their
respective terms. To the best of Borrower's knowledge after good faith diligent
inquiry, the Applicable Underlying Transaction Documents constitute legal,
valid, and binding obligations of the relevant Applicable Underlying Developers
and Applicable Underlying Guarantors, enforceable against each of them in
accordance with the respective terms of such Applicable Underlying Transaction
Documents.
(d Borrower has good and marketable title to all of the Collateral,
free and clear of any Lien, security interest, charge, or encumbrance except for
the Liens or security interests created by this Agreement or any Loan Document
or otherwise created in favor of Lender or the Permitted Liens and Encumbrances.
No financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office, except such as may
have been filed in favor of Lender.
(e The execution and delivery of the Loan Documents, the delivery
and [if the document is a promissory note or instrument (as defined in the
Code)] endorsement to Lender of the Pledged Notes Receivable, Pledged Put and
Reserve Agreements, Pledged Consumer Notes Receivable and Purchased Consumer
Notes Receivable, the filing and recordation of UCC-1 and UCC-3 financing
statements in each Applicable Jurisdiction, and the recordation or registration
in the Applicable Jurisdiction in accordance with all Applicable Laws of the
Pledges and Assignments of Notes Receivable and the Pledges and Assignments of
Consumer Notes Receivable and Interval Mortgages create in favor of Lender valid
and perfected continuing first priority Liens and security interests in and to
all of the Collateral. The Collateral secures the full payment and performance
of the Obligations.
(f To the best of Borrower's knowledge after good faith diligent
inquiry, none of the Pledged Notes Receivable, Pledged Put and Reserve
Agreements, Pledged Consumer Notes Receivable or Purchased Consumer Notes
Receivable is forged or has affixed thereto any unauthorized signatures or has
been entered into by any Person without the required legal capacity, and during
the term of this Agreement, none will be forged, or will have affixed thereto
any unauthorized signatures.
(g There have been no material modifications or amendments
whatsoever to the Pledged Notes Receivable, the Pledged Put and Reserve
Agreements or the Applicable Mortgages, other than those expressly approved by
Lender in writing, the originals of which have been delivered to Custodian.
(h Borrower has received no notice that there have been any material
modifications or amendments to the Pledged Consumer Notes Receivable, the
Purchased Consumer Notes Receivable or the Interval Mortgages.
(i None of the makers of the Pledged Notes Receivable and, to the
best of Borrower's knowledge after good faith diligent inquiry, the Pledged
Consumer Notes Receivable or Purchased Consumer Notes Receivable have any
defenses, offsets, claims, or counterclaims, relating to the Pledged Notes
Receivable, the Pledged Put and Reserve Agreements, any of the other Applicable
Underlying Transaction Documents, the Pledged Consumer Notes Receivable or the
Purchased Consumer Notes Receivable, and Borrower has received no notice that
any such defense, offset, claim or counterclaim is claimed to exist.
(j The Applicable Mortgages, if any, constitute and will continue to
constitute valid and enforceable first and exclusive Liens and security
interests on the real property encumbered thereby.
(k The Interval Mortgages constitute and will continue to constitute
valid and enforceable first and exclusive Liens and security interests on the
Encumbered Intervals.
(l The Pledged Notes Receivable, the Pledged Put and Reserve
Agreements, and the Applicable Mortgages are and shall remain in full force and
effect as valid and binding obligations of the respective Applicable Underlying
Developers in favor of Lender, as holder and/or collateral assignee.
(m The Pledged Consumer Notes Receivable, the Purchased Consumer
Notes Receivable and the Interval Mortgages are and shall remain in full force
and effect as valid and binding obligations of the respective Purchasers in
favor of Lender, as collateral assignee.
(n The grant of the Liens and security interests described herein by
Borrower in favor of Lender has not adversely affected and will not adversely
affect the validity or enforceability of the obligations of the respective
Applicable Underlying Developer under any of the Applicable Underlying
Transaction Documents.
(o The grant of the Liens and security interests described herein by
the Applicable Underlying Developers to Borrower and by Borrower to Lender has
not affected and will not adversely affect the validity or enforceability of the
obligations of the respective makers of the Pledged Consumer Notes Receivable
and Purchased Consumer Notes Receivable under such Consumer Notes Receivable or
the corresponding Interval Mortgages.
(p Lender is not and shall not be required to take, and Borrower has
taken, any and all required steps to protect Lender's Liens and security
interests in the Collateral (other than maintaining or causing Custodian to
maintain possession, custody, and control of the portion of the Collateral
constituting instruments and timely filing continuation statements for UCC
financing statements); and Lender is not and shall not be required to collect or
realize upon the Collateral or any distribution of interest or principal, nor
shall loss of, or damage to, any Collateral release Borrower from any of the
Obligations.
5.3 Financial Statements and Business Condition. The Financial Statements
fairly present the respective financial conditions and results of operations of
Borrower and Guarantor as of the date or dates thereof and for the periods
covered thereby. There are no material liabilities, direct or indirect, fixed or
contingent, of Borrower or Guarantor as of the dates of such Financial
Statements that are not reflected therein or in the notes thereto that have not
otherwise been disclosed to Lender in writing. Except for any such changes
heretofore expressly disclosed in writing to Lender, there have been no material
adverse changes in the respective financial conditions of Borrower or Guarantor
from the financial conditions shown in their respective Financial Statements,
nor have Borrower or Guarantor incurred any material liabilities, direct or
indirect, fixed or contingent, that are not shown in their respective Financial
Statements. Borrower and Guarantor are able to pay all of their respective debts
as they become due, and Borrower and Guarantor, as the case may be, shall
maintain such solvent financial condition, giving effect to the Obligations, as
long as Borrower or Guarantor are obligated to Lender under this Agreement or
any of the other Loan Documents. Neither Borrower's nor Guarantor's Obligations
under the Loan Documents will render Borrower or Guarantor unable to pay their
respective debts as they become due.
5.4 Taxes. Except with respect to taxes and assessments being contested in
accordance with the terms and conditions of Section 6.1(e) hereof, Borrower
represents and warrants that to the best of Borrower's knowledge after good
faith diligent inquiry, each Applicable Underlying Developer (a) has paid in
full all ad valorem taxes and other taxes and assessments levied against the
Applicable Underlying Transaction Collateral, the Applicable Underlying Purchase
Property, and Borrower knows of no basis for any additional taxes or assessments
against any Applicable Resort, Applicable Underlying Transaction Collateral or
Applicable Underlying Purchase Property; and (b) has filed all tax returns
required to have been filed by it and has paid or will pay, prior to
delinquency, all taxes shown to be due and payable on such returns, including
interest and penalties, and all other taxes that are payable by it. To the best
of Borrower's knowledge after good faith diligent inquiry, no tax audit is
pending or threatened with respect to Borrower, Guarantor, any Applicable
Underlying Developer, or any Applicable Underlying Guarantor.
5.5 Title to Properties; Prior Liens. To the best of Borrower's knowledge
after good faith diligent inquiry, each Applicable Underlying Developer has good
and marketable title to all of the Applicable Underlying Transaction Collateral
for each Applicable Underlying Transaction in which it has engaged, together
with all rights, properties, and benefits appurtenant or related thereto. Other
than the Liens granted in favor of Lender, there are no Liens or encumbrances
against all or any portion of the Collateral or the Applicable Underlying
Transaction Collateral, except for the Permitted Liens and Encumbrances.
5.6 Subsidiaries, Affiliates, and Capital Structure. Guarantor is the sole
shareholder of and derives financial benefit from Borrower. None of the
Affiliates of Borrower or Guarantor are parties to any proxies, voting trusts,
shareholder agreements, or similar arrangements, pursuant to which voting
authority, rights, or discretion with respect to Borrower or Guarantor is vested
in any other Person.
5.7 Litigation, Proceedings, Etc. There are no actions, suits,
proceedings, orders, or injunctions pending or, to the best of Borrower's
knowledge after good faith diligent inquiry, threatened against or affecting
Borrower, Guarantor, their respective Affiliates, or any Applicable Resort,
Applicable Underlying Developer, or Applicable Underlying Guarantor, at law or
in equity, or before or by any governmental authority or other tribunal, that
(a) could have a material adverse effect on Borrower, Guarantor, any Affiliate
of Borrower or Guarantor, any Applicable Resort, any Applicable Underlying
Developer, or any Applicable Underlying Guarantor; or (b) could have a material
adverse effect on all or any portion of the Collateral or any Applicable
Underlying Loan Collateral. Exhibit "I", attached hereto and incorporated herein
by this reference, describes all currently pending litigation against Borrower
or Guarantor.
5.8 Environmental Matters. To the best of Borrower's knowledge after good
faith diligent inquiry: (a) none of the Applicable Resorts contain any Hazardous
Materials, and no Hazardous Materials are used or stored at or transported to or
from any Applicable Resort, except for commercially reasonable amounts thereof
commonly found at residential and resort properties in the Applicable
Jurisdiction; (b) no Applicable Underlying Developer has received notice from
any governmental agency or other Person with regard to Hazardous Materials on,
under, or affecting all or any portion of any Applicable Resort, the Applicable
Underlying Transaction Collateral or any Applicable Underlying Purchase
Property; and (c) neither any Applicable Underlying Developer, any Applicable
Resort, nor any Applicable Underlying Transaction Collateral, nor any Applicable
Underlying Purchase Property is in violation of any Environmental Laws.
5.9 Full Disclosure. No information, exhibit, or written report or the
content of any schedule furnished by or on behalf of Borrower or Guarantor to
Lender in connection with the Loan, the Applicable Resorts, the Applicable
Underlying Developers, the Applicable Underlying Guarantors, any of the
Applicable Underlying Transaction Collateral, or the Collateral, and no
representation or statement made by Borrower or Guarantor in any Loan Document,
contains any material misstatement of fact or omits the statement of a material
fact necessary to make the statement contained herein or therein not misleading.
To the extent that any such information, exhibit, report, or statement furnished
or made to Lender was obtained by Borrower from an Applicable Underlying
Developer or an Applicable Underlying Guarantor, the representation and warranty
made in this Section 5.9 is so made to the best of Borrower's knowledge after
good faith diligent inquiry. Neither Borrower nor Guarantor knows of any fact or
condition that could adversely affect the operation of all Applicable Resorts in
accordance with all Applicable Laws, or impede or preclude Borrower's or
Guarantor's performance of its Obligations pursuant to the Loan Documents.
5.10 Use of Proceeds/Margin Stock. None of the proceeds of the Loan will
be used to purchase or carry any "margin stock" (as defined under Regulation U
of the Board of Governors of the Federal Reserve System, as in effect from time
to time), and no portion of the proceeds of the Loan will be extended to others
for the purpose of purchasing or carrying margin stock. None of the transactions
contemplated in this Agreement (including, without limitation, the use of the
proceeds of the Loan) will violate or result in the violation of Section 7 of
the Securities Exchange Act of 1934, as amended, or any regulations issued
pursuant thereto, including, without limitation, Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System, 12 C.F.R. Part 11. The
proceeds of the Loan will be disbursed only for the purposes set forth in
Section 2.1 hereof.
5.11 No Defaults. No Default exists, and there is no breach or violation
in any material respect of any term of any document, contract, agreement,
charter instrument, bylaws, or other instrument to which Borrower or any
Affiliate thereof is a party or by which it may be bound.
5.12 Restrictions of Borrower or Guarantors. Neither Borrower, Guarantor,
nor any Affiliate thereof is a party to any contract or agreement, or subject to
any Lien, charge, or restriction, that materially and adversely affects its
business. Neither Borrower nor Guarantor will be, on or after the Closing Date,
a party to any contract or agreement that restricts its right or ability to
incur indebtedness or prohibits Borrower's or Guarantor's execution and delivery
of, or compliance with the terms of, this Agreement or the other Loan Documents.
Borrower has not agreed or consented to cause or permit in the future (upon the
happening of any contingency or otherwise) any of the Collateral, whether now
owned or hereafter acquired, to be subject to a Lien except in favor of Lender
as provided hereunder.
5.13 Broker's Fees. Lender and Borrower represent to each other that
neither of them has made any commitment or taken any action that could result in
a claim for any broker's, finder's, or other similar fees or commissions with
respect to any of the transactions contemplated by this Agreement. Borrower
agrees to indemnify Lender and save and hold Lender harmless from and against
all claims of any Person for any broker's or finder's fee, commission, or
similar amount, and this indemnity shall include reasonable attorneys' fees and
legal expenses.
5.14 Tax Identification/Social Security Numbers. Borrower's and Guarantor's
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respective federal taxpayer identification numbers are as follows:
Borrower:... 00-0000000
Guarantor:.. 00-0000000
5.15 Legal Compliance. Borrower has, in all material respects, complied
fully with all Applicable Laws in connection with the Applicable Underlying
Transactions. To the best of Borrower's knowledge after good faith diligent
inquiry, each Applicable Underlying Developer has, in all material respects,
similarly complied with all Applicable Laws in connection with each Applicable
Resort, the Applicable Underlying Transaction Collateral and the Applicable
Underlying Purchase Property. In particular, Borrower is not aware of any
violation by an Applicable Underlying Developer in connection with an Applicable
Resort of: (i) the Interstate Land Sales Full Disclosure Act; (ii) any
applicable state condominium and timeshare statutes, rules, and regulations,
including but not limited to those governing the administration and operation of
owners' associations and those requiring registration of any of the Encumbered
Intervals; (iii) Regulation Z of the Federal Reserve Board; (iv) the Equal
Credit Opportunity Act; (v) Regulation B of the Federal Reserve Board; (vi)
Section 5 of the Federal Trade Commission Act; (vii) all applicable state and
federal securities laws; (viii) all applicable usury laws; (ix) all applicable
trade practices, home and telephone solicitation, sweepstakes, lottery, and
other consumer credit and protection laws; (x) all applicable real estate sales
licensing, disclosure, reporting, and escrow laws; (xi) the Americans with
Disabilities Act; (xii) the Real Estate Settlement Procedures Act; and (xiii)
all amendments to and rules and regulations promulgated under the foregoing.
5.16 Representations and Warranties of Applicable Underlying Developers.
To the best of Borrower's knowledge after good faith diligent inquiry, the
representations and warranties made by the Applicable Underlying Developer in
the Applicable Underlying Transaction Documents do not contain any material
misstatements of fact or omit the statement of a material fact necessary to make
such representation or warranty not misleading.
5.17 Applicable Timeshare Documents and Reports. Each Applicable
Underlying Developer has furnished to Borrower and Borrower shall furnish to
Lender, upon request, true and correct copies of the Applicable Timeshare
Documents which consist of all those placed on file by the Applicable Underlying
Developer with the applicable regulatory authorities or any other appropriate
federal, state, or local regulatory or recording agencies, offices, or
departments, if required.
5.18 Continuation and Investigation. Each request by Borrower for an
Advance shall constitute an affirmation that all representations and warranties
contained herein remain true and correct as of the date thereof. All
representations, warranties, covenants, and agreements made herein or in any
certificate or other document delivered to Lender by or on behalf of Borrower,
pursuant to or in connection with this Agreement, shall be deemed to have been
relied upon by Lender, notwithstanding any investigation heretofore or hereafter
conducted by or on behalf of Lender, and shall survive the making of any or all
Advances and payments contemplated hereby.
SECTION 6. COVENANTS
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6.1 Affirmative Covenants. For so long as any of Borrower's Obligations remain
----------------------
unsatisfied, Borrower hereby covenants and agrees with Lender as follows:
(a Payment and Performance of Obligations. Borrower shall repay all
of the Loan and all related amounts when and as the same become due and
payable, and Borrower shall strictly observe and perform all of the
Obligations, including, without limitation, all covenants, agreements,
terms, conditions, and limitations contained in the Loan Documents, and
will do all things necessary that are not prohibited by law to prevent the
occurrence of any Default.
(b Maintenance of Existence, Qualification and Assets. Borrower
shall at all times (i) maintain its legal existence; (ii) maintain its
qualification, where required, to transact business and good standing in
the States of Delaware and New York and in any other jurisdiction in which
it conducts business; and (iii) comply or cause its compliance with all
Applicable Laws.
(c Maintenance of Insurance. Borrower shall ensure that the
Applicable Underlying Transaction Documents require that until all of
Borrower's Obligations have been fully satisfied, policies of insurance
with premiums therefor being paid when due, are maintained and, promptly
upon receipt thereof from each Applicable Underlying Developer, shall
deliver to Lender and Servicing Agent originals of insurance policies
issued by insurance companies (together with paid premium invoices in
respect thereof), in amounts, in form, and in substance, and with
expiration dates, all acceptable to Lender and containing waivers of
subrogation rights by the insuring company, non-contributory standard
mortgagee benefit clauses or their equivalents, and mortgagee loss payable
endorsements in favor of and satisfactory to Lender and breach of warranty
coverage, providing the following types of insurance on and with respect
to each Applicable Underlying Developer and each Applicable Resort:
(i As to all improvements that have already been completed as
of the date hereof, "All Risk Special Form" insurance coverage
(including fire, lightning, hurricane, tornado, wind and water
damage, earthquake, vandalism and malicious mischief coverage)
covering all real and personal property that comprises the
Applicable Resort, in an amount not less than the full replacement
value of such improvements and personal property, and said policy of
insurance shall provide for a deductible acceptable to Lender,
breach of warranty coverage, and replacement cost endorsements
satisfactory to Lender, and shall not permit co-insurance;
(ii Public liability and property damage insurance
covering the Applicable Resort in amounts and on terms
satisfactory to Lender; and
(iii Such other insurance on the Applicable Resort or any
replacements or substitutions therefor, including, without
limitation, rent loss, business interruption, flood insurance (if
the Applicable Resort is or becomes located in an area that is
considered a flood risk by the U.S. Emergency Management Agency or
pursuant to the National Flood Insurance program), in such amounts
and upon such terms as may from time to time reasonably be required
by Lender.
Lender shall expressly be named an insured and loss payee in each
insurance policy described in this Section 6.1(c). To the extent any
"institutional mortgagee," "institutional lender" or "mortgagee" (as
defined or used in an Applicable Declaration) other than Lender has any
rights to approve the form of insurance policies with respect to the
Applicable Resort, the amounts of coverage thereunder, the insurers under
such policies, or the designation of an attorney-in-fact for purposes of
dealing with damage to any part of the Applicable Resort or insurance
claims or matters related thereto or any successor to such
attorney-in-fact or any changes with respect to any of the foregoing,
Borrower shall take all steps as may be necessary to ensure that Lender
shall at all times have a co-equal right with such other "institutional
mortgagee," "institutional lender," or other "mortgagee" (including,
without limitation, Borrower or any third-party lender), to approve all
such matters and any proposed changes in respect thereof; and Borrower
shall not cause and shall use its best efforts to prohibit any changes
with respect to any insurance policies, insurers, coverage,
attorney-in-fact or insurance trustee, if any, without Lender's prior
written approval.
In the event of any insured loss or claim in respect of all or any
portion of an Applicable Resort, Borrower shall use its good faith
commercially reasonable efforts (within the scope of its role as lender)
to cause all proceeds of such insurance policies to be applied in a manner
consistent with the Applicable Timeshare Documents and all Applicable
Laws.
All insurance policies required pursuant to this Agreement (or the
Applicable Timeshare Documents) shall provide that the coverage afforded
thereby shall not expire or be amended, canceled, modified, or terminated
without at least thirty (30) days' (or a shorter period if such shorter
period is mandated by applicable law) prior written notice to Lender and
contain a provision affirming Lender's rights and benefits thereunder,
despite any violation of the applicable policy terms by the Applicable
Underlying Developer or any other Person. At least thirty (30) days prior
to the expiration date of each policy maintained pursuant to this Section
6.1(c), a certified copy of a renewal or replacement thereof satisfactory
to Lender shall be delivered to Lender, along with evidence satisfactory
to Lender that the premium therefor has been paid in full. The delivery of
any insurance policies hereunder shall constitute an assignment of all
unearned premiums as further security for the Obligations. In the event
that all required premium payments for all such insurance policies are not
paid at least thirty (30) days prior to the expiration date of each policy
maintained pursuant to this Section 6.1(c), Borrower shall immediately
upon receiving notice thereof notify Lender in writing of such failure to
timely pay the required insurance premiums. Borrower shall make a good
faith inquiry on a regular basis to each Applicable Underlying Developer
to determine whether the required insurance premiums covering the
Applicable Underlying Transaction Collateral and Applicable Underlying
Purchase Property have been paid. If Borrower determines upon such inquiry
or otherwise that the required insurance premiums have not been paid,
Borrower shall immediately notify Lender of such failure to timely pay the
required insurance premium, and Borrower shall have thirty (30) days from
receipt of a written request from Lender to cause the required insurance
premiums to be paid. If the required insurance premiums are not paid
within such thirty (30) day period, Lender may, in its discretion, without
any obligation to do so, choose to pay such required insurance premiums,
in which case Borrower shall pay Lender interest at the Default Rate for
any amounts so advanced. Lender may also, in its discretion, in the event
the required insurance premiums are not paid when due, establish an
insurance escrow account from which Lender may make insurance payments
when insurance premiums shall become due. If the required insurance
premiums are not paid as required and Lender elects not to pay such
insurance premiums or establish an escrow account for payment thereof,
such failure shall constitute an Event of Default hereunder.
In the event of any fire or other casualty to or with respect to all
or any portion of the Applicable Resort, Borrower covenants that it shall
use its good faith commercially reasonable efforts (within the scope of
its role as lender) to cause the prompt restoration, repair, or
replacement of the damaged portion(s) of the Applicable Resort and the
repair or replacement of any other personal property to the same condition
as immediately prior to such fire or other casualty and, with respect to
the real and personal property comprising the Applicable Resort, in
accordance with the terms of the Applicable Timeshare Documents and all
Applicable Laws. The insufficiency of any net insurance proceeds shall in
no way relieve Borrower or the Applicable Underlying Developer from their
respective obligations as set forth herein. In Lender's discretion, any
and all insurance proceeds payable to or received by Lender pursuant to
the Applicable Declaration or the applicable insurance policies may be
applied to the payment of the Obligations, whether or not due and in
whatever order Lender elects, consistent with the terms of the applicable
insurance policy and the Applicable Declaration.
Borrower shall in good faith cooperate with Lender in obtaining for
Lender the benefits of any insurance or other proceeds lawfully or
equitably payable to any Applicable Underlying Developer, Borrower, or
Lender in connection with the transactions contemplated hereby and in
paying any Obligation (including the payment by Borrower of the expense of
an independent appraisal on behalf of Lender in case of a fire or other
casualty affecting the Applicable Resort).
Borrower shall not waive any material insurance provision in any
Applicable Underlying Transaction Document without Lender's prior written
consent.
(d Maintenance of Security. Borrower shall execute and deliver (or
cause to be executed and delivered) to Lender all security agreements,
financing statements, assignments, and such other agreements, documents,
instruments, and certificates, and all supplements and amendments thereto,
and take all such other actions, as Lender deems necessary or appropriate
in order to maintain as valid, enforceable, and perfected first priority
Liens and security interests, all Liens and security interests in the
Collateral and Applicable Underlying Transaction Collateral granted to
Lender to secure the Obligations. Borrower shall not grant extensions of
time for the payment of, or compromise for less than the full face value
or release in whole or in part, any Applicable Underlying Developer,
Applicable Underlying Guarantor, or other Person liable for the payment
of, or allow any credit whatsoever except for the amount of cash to be
paid upon, any Collateral or any instrument, chattel paper, or document
representing the Collateral.
(e Payment of Taxes and Claims. Borrower agrees to use its best
efforts to cause to be paid, when due, all taxes and assessments of any
kind imposed on or with respect to the Loan or any of the Loan Documents,
or the Collateral, including but not limited to the Encumbered Intervals.
Borrower shall make good faith inquiry on a regular basis to determine
whether all such taxes and assessments have been paid. Borrower shall
immediately notify Lender in writing of any failure to timely pay all
taxes and assessments due. In the event that Lender determines (through
notice from Borrower or otherwise) that any such taxes or assessments have
not been paid when due, Borrower shall have thirty (30) days from receipt
of a written request for payment from Lender to cause the required taxes
and assessments to be paid, except to the extent such taxes and
assessments are being contested in accordance with the terms and
conditions of this Section 6.1(e). If such required taxes and assessments
(and any applicable late charges, etc.) are not paid within such thirty
(30) day period and are not being contested in accordance with the terms
and conditions of this Section 6.1(e), such failure shall constitute an
Event of Default and Lender may, in its discretion, without any obligation
to do so, choose to pay such taxes on behalf of Borrower or the Applicable
Underlying Developer, in which case Borrower shall pay Lender interest at
the Default Rate on any amounts so advanced. Borrower shall pay, where
applicable, or shall use its best efforts to cause the Applicable
Underlying Developer or Applicable Underlying Guarantor to pay, all other
charges and assessments levied against such Applicable Underlying
Developer, the Applicable Underlying Transaction Collateral, the
Applicable Underlying Purchase Property, or the Applicable Resort before
any claim (including, without limitation, claims for labor, services,
materials, or supplies) arises for amounts that have become due and
payable. Borrower may contest the payment of taxes and assessments in good
faith and by appropriate proceedings diligently conducted, which suspend
the collection thereof from the Collateral and do not interfere with the
payment of monies due under the Collateral so long as adequate reserves
have been set aside for such taxes and assessments in accordance with
GAAP, and the non-payment of such taxes and assessments, in the opinion of
Lender, does not place the Collateral in any imminent danger of being
sold, forfeited or lost.
(f) Inspections. Borrower shall, at any time and from time to time,
upon reasonable notice and at the expense of Borrower, including but not
limited to the travel expenses of Lender's agents, ensure that the
Applicable Underlying Transaction Documents permit, and use its good faith
commercially reasonable efforts to arrange for, Lender or its agents or
representatives to inspect any Applicable Resort, any Applicable
Underlying Transaction Collateral, any Applicable Underlying Purchase
Property or any of Borrower's or Guarantor's assets, including but not
limited to all documents, bank statements, and other records within
Borrower's possession, custody, or control, and to examine and make copies
and abstracts thereof; and to discuss its affairs, finances and accounts
with any of its officers, employees, Affiliates, contractors or
independent certified public accountants (and by this provision, Borrower
authorizes said accountants to discuss with Lender, its agents or
representatives, the affairs, finances, and accounts of Borrower).
Notwithstanding the foregoing provisions of this Section 6.1(f) to the
contrary, Lender will make no more than two (2) such inspections per year
in connection with any particular Applicable Underlying Transaction unless
an Event of Default hereunder has occurred. Lender agrees to use
reasonable efforts not to interfere unreasonably with the Applicable
Underlying Developer's business operations in connection with any such
inspections. Without limiting the foregoing, Lender shall have the right
to make such credit investigations as Lender may deem appropriate in
connection with its review of any Applicable Underlying Transaction
Documents. Borrower shall make available to Lender all such credit and
other information in Borrower's possession or under its control or to
which it may have access with respect to Applicable Underlying Developers
and Applicable Underlying Guarantors as Lender may request.
Notwithstanding anything in this Section 6.1(f) to the contrary, without
the prior written consent of Borrower not to be unreasonably withheld,
Lender will not initiate contact with an Applicable Underlying Developer
or its employees, agents or independent contractors concerning an
Applicable Underlying Transaction unless an Event of Default exists.
(g) Reporting Requirements. For so long as any of the Obligations
remain unsatisfied, Borrower shall furnish (or cause to be furnished, as
the case may be) to Lender, in each case certified in writing by Borrower
and Guarantor as true and correct, the following:
(i) Monthly Financial Reports. As soon as available and in any
event within fifteen (15) days after the end of each calendar month:
(i) a report detailing all amounts of every possible description
received by or on behalf of Borrower with respect to each Applicable
Underlying Transaction during the preceding calendar month and how
such amounts were allocated between principal, interest, and other
categories; (ii) a current aging report on the Pledged Consumer
Notes Receivable and the Purchased Consumer Notes Receivable; (iii)
a report detailing collections on each of the Pledged Notes
Receivable (trial balance); (iv) a delinquency report on all Pledged
Notes Receivable, Pledged Consumer Notes Receivable and Purchased
Consumer Notes Receivable; (v) a Borrowing Base report substantially
in the form of Exhibit "J", attached hereto and incorporated herein
by this reference; and (vi) monthly reports from Lockbox Agent as
required pursuant to the Lockbox Agreement;
(ii) Quarterly Financial Reports. As soon as available and in
any event within sixty (60) days following the end of each calendar
quarter, unaudited statements of income and expense and cash flow of
Borrower and Guarantor for the quarterly period in question and
balance sheets of Borrower and Guarantor as of the last day of such
calendar quarter, all in such detail and scope as may be reasonably
required by Lender, prepared in accordance with GAAP and on a basis
consistent with prior accounting periods and certified as true and
correct by Borrower's and Guarantor's respective chief financial
officers, as appropriate;
(iii) Annual Audited Financial Reports. As soon as available
and in any event within one hundred twenty (120) days after the end
of each of calendar year or other fiscal year as may be applicable
with respect to Borrower and Guarantor (a "Fiscal Year"), statements
of income and expense and cash flow of Borrower and Guarantor for
the annual period ended as of the end of such Fiscal Year, and
balance sheets of Borrower and Guarantor as of the end of such
Fiscal Year, all in such detail and scope as may be reasonably
required by Lender and prepared and audited by an independent
certified public accounting firm acceptable to Lender in accordance
with GAAP and on a basis consistent with prior accounting periods.
Each annual financial statement of Borrower and Guarantor shall be
certified by Borrower and Guarantor to be true, correct, and
complete, and shall otherwise be in form acceptable to Lender;
(iv) Officer's Certificate. Each set of annual Financial
Statements or reports delivered to the Lender pursuant to Sections
6.1 (g)(i), (ii) and (iii) hereof shall be accompanied by a
certificate of the President or the Chief Financial Officer of
Borrower or Guarantor, as appropriate, setting forth that the
signers have reviewed the relevant terms of this Agreement (and all
other agreements and exhibits between the relevant parties), have
made, or caused to be made, under their supervision, a review of the
transactions and conditions of Borrower and Guarantor from the
beginning of the period covered by the Financial Statements or
reports being delivered therewith to the date of the certificate,
and that such review has not disclosed the existence during such
period of any condition or event that constitutes a Default or, if
any such condition or event existed or exists or will exist,
specifying the nature and period of existence thereof and what
action Borrower or Guarantor has taken or proposes to take with
respect thereto;
(v) Audit Reports. Promptly upon receipt thereof, one (1) copy
of each other report submitted to Borrower or Guarantor by
independent public accountants or other Persons in connection with
any annual, interim, or special audit made by them of the books of
Borrower or Guarantor;
(vi) Notice of Default. Promptly upon becoming aware of the
existence of any condition or event that constitutes or would with
the passage of time, notice or a determination by Lender constitute
a Default, or a default or event of default pursuant to any of the
Applicable Underlying Transaction Documents, a written notice
specifying the nature and period of existence thereof and what
action Borrower is taking or proposes to take with respect thereto;
(vii) Notice of Claimed Default. Promptly upon becoming aware
that the holder of any material obligation or of any evidence of
material indebtedness of Borrower, Guarantor, or any Applicable
Underlying Developer or Applicable Underlying Guarantor has given
notice or taken any other action with respect to a claimed default
or event of default with respect thereto, a written notice
specifying the notice given or action taken by such holder and the
nature of the claimed default or event of default and what action
Borrower or Guarantor is taking or proposes to take with respect
thereto;
(viii) Material Adverse Developments. Promptly upon becoming
aware of any pending or threatened claim, action, proceeding,
litigation, development, or any other information, whether of the
type referenced in Section 5.7 hereof or otherwise, that could
materially and adversely affect Borrower, Guarantor, any Applicable
Underlying Developer, any Applicable Underlying Guarantor, any
Applicable Resort, any Applicable Underlying Transaction Collateral,
or all or any portion of the Collateral, including but not limited
to the ability of Borrower to perform its Obligations hereunder,
Borrower shall provide Lender with telephonic notice thereof,
immediately followed by telecopied and mailed written confirmation,
specifying the nature of such development or information and the
anticipated effect thereof;
(ix) Applicable Underlying Transaction Financials. Borrower
shall deliver to Lender quarterly unaudited financial statements for
each Applicable Underlying Transaction within sixty (60) days after
each calendar quarter and annual audited financial statements for
each Applicable Underlying Transaction within one hundred twenty
(120) days after each calendar year; and
(x) Other Information. Borrower shall promptly deliver to
Lender any other available information related to the Loan, the
Collateral, any Applicable Underlying Transaction Collateral,
Borrower, Guarantor, the Applicable Resorts, the Applicable
Underlying Developers, or the Applicable Underlying Guarantors as
Lender may in good faith request.
(xi) Applicable Underlying Transaction Financials. Borrower
shall deliver to Lender quarterly unaudited financial statements for
each Applicable Underlying Transaction within sixty (60) days after
each calendar quarter and annual audited financial statements for
each Applicable Underlying Transaction within one hundred twenty
(120) days after each calendar year.
(h) Records. Borrower shall keep detailed accurate books and records
of account in accordance with GAAP reflecting all financial transactions
of Borrower with respect to the Applicable Underlying Transactions.
(i) Notices of Changed Circumstances. Borrower shall notify Lender
within five (5) Business Days of the occurrence of any event (i) as a
result of which any representation or warranty of Borrower contained in
any Loan Document would be incorrect or materially misleading if made at
that time or (ii) as a result of which Borrower is not in full compliance
with all of its covenants and agreements contained in this Agreement or
any other Loan Document.
(j) Other Documents. Borrower shall maintain to the satisfaction of
Lender, and make available to Lender, accurate and complete files relating
to the Pledged Notes Receivable, the Pledged Put and Reserve Agreements,
the Pledged Consumer Notes Receivable, the Purchased Consumer Notes
Receivable and all of the other Collateral, and such files shall contain
true copies of each Pledged Note Receivable, each Pledged Consumer Note
Receivable and each Purchased Consumer Note Receivable, as amended from
time to time, copies of all relevant credit memoranda relating to such
Pledged Notes Receivable, Pledged Put and Reserve Agreements, Pledged
Consumer Notes Receivable and Purchased Consumer Notes Receivable, and all
collection information and correspondence relating thereto.
(k) Further Assurances. Borrower shall execute and deliver, or cause
to be executed and delivered, such other and further agreements,
documents, instruments, certificates, and assurances as, in the judgment
of Lender exercised in good faith, may be necessary or appropriate in
order more effectively to evidence or secure, and to ensure the
performance of, the Obligations. In addition, Borrower shall deliver to
Lender from time to time, upon request by Lender, such documents,
instruments, and other materials or items as Lender may reasonably require
to evidence Borrower's compliance with the covenants set forth in this
Section 6.
(l) Expenses and Closing Fees. Whether or not the transactions
contemplated hereunder are consummated, Borrower shall pay all reasonable
expenses of Lender relating to negotiating, preparing, documenting,
closing, and enforcing this Agreement and the other Loan Documents,
including but not limited to:
(i) The cost of preparing, reproducing, and binding this
Agreement, the other Loan Documents, and all exhibits and
schedules thereto;
(ii) The fees and disbursements of Lender's and Borrower's
counsel;
(iii) Lender's out-of-pocket expenses;
(iv) All fees and expenses (including fees and expenses of
Lender's counsel) relating to any amendments, waivers, consents, or
subsequent closings or other transactions pursuant to the provisions
hereof or the release of any Collateral;
(v) All costs, outlays, legal fees, and expenses of every kind
and character had or incurred in: (A) the interpretation or
enforcement of any of the provisions of, or the creation,
preservation, or exercise of rights and remedies under, any of the
Loan Documents, including the costs of appeal; (B) the preparation
for, negotiations regarding, consultations concerning, or the
defense or prosecution of legal proceedings involving any claim or
claims made or threatened against Lender arising out of this
transaction or the preservation or protection of the Collateral or
Advances made hereunder, expressly including, without limitation,
the defense by Lender of any legal proceedings instituted or
threatened by any Applicable Underlying Developer, Applicable
Underlying Guarantor, or other Person to seek to recover or set
aside any payment or set off theretofore received or applied by the
Lender with respect to the Obligations, and any and all appeals
thereof; and (C) the advancement of any expenses provided for under
any of the Loan Documents. Without limiting the generality of the
foregoing, in the event of the commencement of a bankruptcy
proceeding by or against Borrower or otherwise involving the
Collateral, Lender shall be entitled to recover, and Borrower shall
be obligated to pay, Lender's attorneys' fees and costs incurred in
connection with: (a) any determination of the applicability of the
Debtor Relief Laws to the terms of the Loan Documents or Lender's
rights thereunder; (b) any attempt by Lender to enforce or preserve
its rights under the bankruptcy laws or to prevent Borrower or any
other person from seeking to deny Lender its rights thereunder; (c)
any effort by Lender seeking to protect, preserve or enforce its
rights against Collateral, or seeking to engage in such protection,
preservation or enforcement; or (d) any proceeding(s) arising under
the Debtor Relief Laws, or arising in or related to a case under the
Debtor Relief Laws;
(vi) All fees and expenses of Servicing Agent, Custodian
and Lockbox Agent;
(vii) All costs and expenses incurred by Lender under the
Note, and all late charges payable under the Note; and
(viii) To the extent the same are not paid by an Applicable
Underlying Developer, all real and personal property taxes and
assessments, documentary stamp and intangible taxes, sales taxes,
recording fees, title insurance premiums and other title charges,
document copying, transmittal and binding costs, lien and judgment
search costs, broker's fees, escrow fees, wire transfer fees,
reasonable expenses (including, without limitation, reasonable fees
and expenses of Lender's counsel) incurred in connection with the
release of any Applicable Underlying Transaction Collateral, and all
travel and out-of-pocket expenses of Lender to conduct inspections
or audits. Without limiting any of the foregoing, Borrower shall pay
the costs of Code and other searches, Code and other Loan Document
recording and filing fees, and applicable taxes and premiums on each
mortgagee policy of title insurance delivered to Lender pursuant to
this Agreement, to the extent the same are not paid by an Applicable
Underlying Developer.
Notwithstanding anything in this Section 6.1(l) to the contrary,
Borrower's liability to pay closing and recording fees, taxes, due
diligence costs, and documentation fees in connection with the
preparation, negotiation and execution of this Agreement and the RFI ADC
Credit Facility Agreement and the closing of the first to occur of the
initial Advance against the first Applicable Underlying Transaction
collaterally assigned to Lender or the initial advance under the RFI ADC
Credit Facility against a note receivable shall not exceed Fifty Thousand
Dollars ($50,000).
(m) Indemnification of Lender. In addition to (and not in lieu of)
any other provisions hereof or of any other Loan Document providing for
indemnification in favor of Lender, Borrower hereby defends, indemnifies,
and holds harmless Lender, its subsidiaries, other Affiliates, officers,
directors, agents, employees, representatives, consultants, contractors,
servants, and attorneys, as well as the respective heirs, personal
representatives, successors, and assigns of any or all of them
(hereinafter collectively referred to as the "Indemnified Lender
Parties"), from and against, and agrees promptly to pay on demand or
reimburse each of them with respect to, any and all liabilities, claims,
demands, losses, damages, costs, and expenses (including, without
limitation, reasonable attorneys' and paralegals' fees and costs), actions
or causes of action of any and every kind or nature whatsoever asserted
against or incurred by any of them by reason of or arising out of or in
any way, directly or indirectly, related or attributable to: (i) this
Agreement, the other Loan Documents, the Collateral, the Applicable
Underlying Transaction Documents, or the Applicable Underlying Transaction
Collateral; (ii) the transactions contemplated under any of the Loan
Documents or the Applicable Underlying Transaction Documents, including,
without limitation, those in any way relating to or arising out of the
violation of any Applicable Laws; (iii) any breach of any covenant or
agreement or the incorrectness or inaccuracy of any representation or
warranty of Borrower contained in this Agreement or any of the other Loan
Documents (including, without limitation, any certification of Borrower
delivered to Lender); (iv) any and all taxes, including real estate,
personal property, sales, mortgage, excise, intangible, or transfer taxes,
and any and all fees or charges that may at any time arise or become due
prior to the payment, performance, and discharge in full of the
Obligations; (v) the failure of Borrower or an Applicable Underlying
Developer to perform any obligation or covenant herein required to be
performed pursuant to any Environmental Laws; (vi) the use, generation,
storage, release, threatened release, discharge, disposal, or presence on,
under, or about any Applicable Resort of any Hazardous Materials (except
to the extent that liability of the Indemnified Lender Party with respect
to such matter would not exist but for the acts or omissions of such
Indemnified Lender Party as determined in a final, non-appealable
adjudication by a court of competent jurisdiction); (vii) the removal or
remediation of any Hazardous Materials from an Applicable Resort required
to be performed pursuant to any Environmental Laws or as a result of
recommendations of any environmental consultant or as required by Lender;
(viii) claims asserted by any Person (including, without limitation, any
governmental or quasi-governmental agency, commission, department,
instrumentality or body, court, arbitrator, or administrative board in
connection with or any in any way arising out of the presence, use,
storage, disposal, generation, transportation, release, or treatment of
any Hazardous Materials on, in, under, or affecting any Applicable Resort;
(ix) the violation or claimed violation of any Environmental Laws in
regard to an Applicable Resort; (x) the preparation of an environmental
audit or report on an Applicable Resort not to exceed one (1) per calendar
year and premised upon the Lender's reasonable belief of the existence of
a violation of Environmental Laws, whether conducted by Lender, Borrower,
an Applicable Underlying Developer, or another Person; (xi) the exercise
by Borrower of any rights or remedies under the Applicable Underlying
Transaction Documents or any Applicable Laws; or (xii) the exercise by
Lender of any rights or remedies under this Agreement or any of the other
Loan Documents. Such indemnification shall not give Borrower or Guarantor
any right to participate in the selection of counsel for Lender or the
conduct or settlement of any dispute or proceeding for which
indemnification may be claimed. The provisions of this Section 6.1(m)
shall survive the full payment, performance, and discharge of the
Obligations and the termination of this Agreement, and shall continue
thereafter in full force and effect.
(n) Loan Servicing. The Servicing Agreement shall be in form and
content satisfactory to Lender. Borrower may not terminate the Servicing
Agreement without's Lender's prior written approval. The Servicing
Agreement shall be cancelable by Lender immediately following the
occurrence of an Event of Default or if Borrower or an Affiliate of
Borrower is the Servicing Agent and Lender, in its reasonable judgment,
has determined that such Person's servicing systems and controls are
inadequate to protect Lender in any material way (and based upon an
on-site inspection conducted by it prior to the Closing Date, Lender
acknowledges that such an inadequacy did not appear to exist as of the
completion of such inspection). If the Servicing Agent is Borrower or an
Affiliate of Borrower, Lender may in its discretion and at Borrower's
expense review the servicing procedures of such Person twice in any twelve
(12) month period or more often if a Default hereunder exists, and no
servicing fees shall be paid during or with respect to any period of time
in which a Default hereunder exists.
(o) Closing Failure Fee. If on or before October 31, 1999, no
Advance occurs and no advance occurs under the RFI ADC Credit Facility or
under any receivables, acquisition, development or construction loan the
initial advance of which is hereafter made by Lender to Guarantor or to an
Affiliate of Guarantor and such event is not the fault of Lender and does
not result from failure of Lender, its attorneys, agents and independent
contractors to act promptly and in good faith, Borrower shall pay to
Lender a fee in the amount of Two Hundred Thousand Dollars ($200,000) plus
all legal fees, costs and due diligence expenses incurred by Lender in
connection with the Loan and the RFI ADC Credit Facility. This fee shall
not be duplicative of the fee required pursuant to Section 6.1(o) of the
RFI ADC Credit Facility Agreement, and all amounts paid pursuant to such
Section shall reduce the amount remaining payable hereunder.
(p) Minimum Loan Balance; Non-Utilization Fee. Beginning on (i) the
date ("Average Combined Balance Start Date") which is six (6) months after
the earlier of the initial Advance, the initial advance under the RFI
Receivables Credit Facility, or the initial advance of any other
receivables, acquisition, development or construction loan under which
such initial advance is hereafter made by Lender to Guarantor or to an
Affiliate of Guarantor or (ii) April 30, 2000, and continuing until the
date on which the Borrowing Term expires ("Average Combined Balance Stop
Date"), Borrower shall maintain an average aggregate daily principal
balance on the Loan, the RFI Receivables Credit Facility and any other
receivables, acquisition, development or construction loans under which
the initial advance is hereafter made by Lender to Guarantor or to an
Affiliate of Guarantor ("Average Combined Balance") in an amount not less
than Ten Million Dollars ($10,000,000) ("Minimum Average Combined
Balance"); provided, however, that Borrower's failure to do so shall not
constitute a Default if on the date ten (10) days after the later of (i)
the end of each three (3) month period (or any shorter period ending on
the Average Combined Balance Stop Date) ("Non-Utilization Fee Payment
Period") following the Average Combined Balance Start Date through the
Average Combined Balance Stop Date or (ii) the effective date of notice
from Lender advising Borrower of the amount due for such Non-Utilization
Fee Payment Period, Borrower shall pay to Lender the Non-Utilization Fee
then due, as calculated pursuant to the following sentence. As used in
this Section 6.1(p), the term "Non-Utilization Fee" means an amount equal
to the excess (if any) of (i) the product of (A) the difference (but not
less than zero), during the period ("Elapsed Portion of the Average
Combined Balance Measurement Period") beginning on the Average Combined
Balance Start Date and terminating at the end of the Non-Utilization Fee
Payment Period for which the Non-Utilization Fee is being calculated,
between the Minimum Average Combined Balance and the actual average daily
aggregate principal balance on the Loan, the RFI Receivables Credit
Facility and any other receivables, acquisition, development or
construction loans under which the initial advance is hereafter made by
Lender to Guarantor or any Affiliate of Guarantor times (B) one-half of
one percent (0.50%) times (C) a fraction the numerator of which is the
number of days in the Elapsed Portion of the Average Combined Balance
Measurement Period and the denominator which is three hundred sixty-five
(365) over (ii) the Non-Utilization Fees previously due. This fee shall
not be duplicative of the fee required pursuant to Section 6.1(p) of the
RFI ADC Credit Facility Agreement, and all amounts paid pursuant to such
Section shall reduce the amount remaining payable hereunder. For purposes
of this Section 6.1(p), the daily balance of a loan shall be determined by
Lender in the same manner as it determines the daily balance of a loan for
purposes of computing accrued interest on such loan.
(q) Custodial Fee. At the time Borrower delivers to Lender a
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Consumer Note Receivable it shall pay to Lender the Custodial Fee for such
Consumer Note Receivable.
6.2 Negative Covenants. For so long as any portion of the Obligations remains
-------------------
unsatisfied, Borrower hereby covenants and agrees with Lender as follows:
(a) Limitation on Other Debt/Further Encumbrances. Without the prior
written consent of Lender, Borrower shall not obtain financing or grant
Liens with respect to all or any portion of the Collateral (whether now
existing or created hereafter) other than those in favor of Lender.
(b) Restrictions on Transfers. Borrower shall not, without obtaining
the prior written consent of Lender, whether voluntarily or involuntarily,
by operation of law or otherwise: (i) transfer, sell, pledge, convey,
hypothecate, factor, or assign all or any portion of the Collateral; (ii)
lease or license any portion of the Collateral, or change the legal or
actual possession or use thereof; or (iii) permit the dilution, transfer,
pledge, hypothecation, or encumbrance of any of the stock of Borrower.
Without limiting the generality of the preceding sentence (and, as the
case may be, in addition to the restrictions contained therein) and
subject to the terms of this Agreement, the prior written consent of
Lender shall be required for (A) any transfer of the Collateral or any
part thereof to a subsidiary or other Affiliate of Borrower or otherwise;
(B) any corporate merger or consolidation, disposition, or other
reorganization of Borrower or Guarantor, or the reclassification of any of
the capital stock of Borrower or Guarantor; or (C) any change in the
ownership of Borrower; provided, however, that notwithstanding the
foregoing provisions of this Section 6.2(b) to the contrary, Lender shall
not unreasonably withhold its consent to any of the actions specified in
(A) through (C) above in the event that: (X) the applicable successor to
Borrower or Guarantor, as the case may be, is an investment grade company
with a minimum tangible net worth of not less than an amount then approved
Lender and the Minimum Net Worth Requirement, respectively, as determined
in accordance with GAAP; and (Y) in the case of a transfer pursuant to
clause (A), the transferee assumes the obligations of Borrower under the
Loan Documents pursuant to a document satisfactory to Lender without the
release of Borrower or Guarantor and Borrower and Guarantor have executed
a document or documents satisfactory to Lender confirming their respective
obligations under the Loan Documents. In the event that Lender is willing
to consent to a transfer that would otherwise be prohibited by this
Section 6.2(b), Lender may condition its consent on such terms as it
desires, including, without limitation, an increase in the Interest Rate
and the requirement that Borrower pay a transfer fee, together with any
expenses incurred by Lender in connection with the granting of such
consent (including, without limitation, attorneys' fees and expenses). If
Borrower violates the terms of this Section 6.2(b), in addition to any
other rights or remedies which Lender may have hereunder, pursuant to any
other Loan Document, or at law or in equity, Lender may, upon written
notice to Borrower, increase, effective immediately as of the date of such
violation, the Interest Rate to the Default Rate.
(c) Use of Lender's Name. Without the prior written consent of
Lender, Borrower shall not, and shall not permit any Affiliate to, use the
name of Lender or of any affiliate of Lender in any press release,
advertising, or other promotional materials of any kind.
(d) Transactions with Affiliates. Without the prior written consent
of Lender, Borrower shall not enter into any transaction with any
Affiliate thereof in connection with the Collateral, including, without
limitation, relating to the purchase, sale, or exchange any assets or
properties or the rendering of any service.
(e) Name Change. Borrower shall not change its name, its chief
executive office, or the locations at which it does business without
providing Lender at least thirty (30) days' prior written notice thereof
and executing, at Borrower's sole expense, such UCC-3 amendments and all
other documents and instruments as Lender deems reasonably necessary or
appropriate in order to continue the perfection of its Lien in and to all
of the Collateral; provided, however, that under no circumstances shall
the name of Borrower ever include the word "Xxxxxxx" in it.
(f) Collateral. Neither Borrower nor Guarantor shall take any action
(or permit or consent to the taking of any action) that might materially
impair the value of all or any portion of the Collateral or any of the
rights of Lender with respect to the Collateral, nor shall Borrower or
Guarantor cause or permit any material amendment to or modification of the
form or terms of any of the Pledged Notes Receivable, Pledged Put and
Reserve Agreements, Applicable Mortgages, other Applicable Underlying
Transaction Documents, or any Applicable Timeshare Documents, including
but not limited to the Applicable Declarations.
SECTION 7. EVENTS OF DEFAULT.
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An "Event of Default" shall exist if any of the following occurs:
7.1 The Loan.
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(a) Payment Default. If Borrower fails to make, as and when due,
whether by acceleration or otherwise, any payment or mandatory prepayment of
principal, interest, or other fees or amounts of any and every kind hereunder or
pursuant to any of the other Loan Documents. Notwithstanding the foregoing
sentence to the contrary, a payment by Borrower hereunder or pursuant to any of
the other Loan Documents shall not be deemed delinquent hereunder as long as the
entire requisite amount is actually received by Lender, without notice or demand
of any kind by Lender, within fifteen (15) days following the date upon which
such payment is due.
(b) Covenant Defaults. If Borrower fails fully and timely to perform
or observe any non-monetary covenant, agreement, or warranty contained in this
Agreement or in any of the other Loan Documents and such failure continues for a
period of thirty (30) days after notice of such failure is furnished by Lender;
provided, however, that if Borrower commences to cure such failure within such
thirty (30) day period but, because of the nature of such failure, cure cannot
be completed within thirty (30) days, notwithstanding Borrower's good faith best
efforts to do so, then, provided that Borrower diligently seeks to complete such
cure, an Event of Default shall not be deemed to have occurred unless such
failure continues for a total of ninety (90) days after notice of such failure
has been given by Lender, provided that such failure does not (i) result in
substantial financial hardship to Lender; or (ii) materially impair the value of
all or any portion of the Collateral, as determined in the reasonable judgment
of Lender.
(c) Warranties or Representations. If any statement or
representation made by or on behalf of Borrower or Guarantor in any of the Loan
Documents, or in any document, instrument, certificate, opinion, or other item
furnished pursuant to the Loan Documents, is false, misleading, or incorrect in
any material respect as of the date made or reaffirmed; provided, however, that
no Event of Default shall exist hereunder if such false, misleading, or
incorrect statement or representation was made by or on behalf of Borrower or
Guarantor in good faith reliance following diligent inquiry upon a document,
instrument, certificate, opinion, or other item furnished to Borrower or
Guarantor by or on behalf of an Applicable Underlying Developer or an Applicable
Underlying Guarantor.
(d) Enforceability of Liens. If any Lien granted by Borrower to
Lender in connection with the Loan is or becomes invalid or unenforceable or is
not, or ceases to be, a perfected first priority Lien in favor of Lender
encumbering the asset which it is intended to encumber, and Borrower fails to
cause such Lien to become a valid, enforceable, first and prior Lien in a manner
satisfactory to Lender within ten (10) days after Lender delivers written notice
thereof to Borrower.
(e) Involuntary Proceedings. If a case is commenced or a petition is
filed against Borrower or Guarantor under any Debtor Relief Law, a receiver,
conservator, liquidator, or trustee of Borrower or Guarantor or of any material
asset of Borrower or Guarantor is appointed by court order and such order
remains in effect for more than forty-five (45) days, or if any material asset
of Borrower or Guarantor is sequestered by court order and such order remains in
effect for more than forty-five (45) days.
(f) Voluntary Proceedings. If either Borrower or Guarantor
voluntarily seeks, consents to, or acquiesces in the benefit of any provision of
any Debtor Relief Law, whether now or hereafter in effect, consents to the
filing of any petition against it under such law, makes an assignment for the
benefit of its creditors, admits in writing its inability to pay its debts
generally as they become due, or consents to or suffers the appointment of a
receiver, trustee, liquidator, or conservator for it or any part of its assets.
(g) Attachment; Judgment; Tax Liens. The issuance, filing, levy, or
seizure against all or any portion of the Collateral or any assets of Borrower
or Guarantor, of one (1) or more attachments, injunctions, executions, tax
liens, or judgments for the payment of money cumulatively in excess of $50,000,
that is not discharged in full or stayed within thirty (30) days after such
issuance, filing, levy, or seizure.
(h) Going Concern Reference. If either Borrower's or Guarantor's
annual audited financial statements required to be furnished to Lender, pursuant
to Section 6.1(g) hereof, make a "going concern" reference or otherwise question
Borrower's or Guarantor's continuing viability as a going concern.
(i) Failure to Deposit Proceeds. If Borrower fails to deliver any
payments made under an Applicable Underlying Transaction directly to Lender or
Lockbox Agent as required by Section 2.5 hereof (other than inadvertent failures
that are corrected immediately upon discovery), or if Borrower takes any other
action which Lender shall deem to be a conversion of all or any portion of the
Collateral or fraudulent with respect to Lender.
(j) Removal of Collateral. If Borrower conceals, removes, transfers,
conveys, assigns, or permits to be concealed, removed, transferred, conveyed, or
assigned, any of the Collateral in violation of the terms of any of the Loan
Documents or with the intent to hinder, delay, or defraud its creditors or any
of them, including, without limitation, Lender.
(k) Other Defaults. If an Event of Default has occurred pursuant to
---------------
Section 3.6 hereof.
(l) Material Adverse Change. If there occurs any material adverse change
-------------------------
in the financial condition of Borrower or Guarantor.
(m) Default of Guarantors. If a default has occurred under the Guaranty.
---------------------
(n) Default by Borrower in Other Agreements. Any default by Borrower
(i) in the payment or performance of other indebtedness for borrowed money or
obligations in excess of $50,000 or (ii) in the payment or performance of any
other material indebtedness or obligations owed to a person other than Lender,
but only if such default is not cured or waived within thirty (30) days after
the occurrence thereof.
(o) Violation of Negative Covenants. If Borrower violates any negative
---------------------------------
covenant set forth in Section 6.2 hereof.
(p) Insolvency. If either Borrower or Guarantor becomes insolvent or
otherwise generally unable to pay its respective debts as and when they become
due or payable.
7.2 Applicable Underlying Transactions.
----------------------------------
(a) Payment Defaults. If any Applicable Underlying Developer fails
to make, as and when due, whether by acceleration or otherwise, any payment or
mandatory prepayment of principal, interest, or other fees or amounts of any and
every kind, pursuant to the Applicable Underlying Transaction Documents, and
such failure continues for a period of thirty (30) days after notice of such
failure is furnished by Borrower to the Applicable Underlying Developer, which
notice shall be given by Borrower immediately upon the Applicable Underlying
Developer's failure to make the required payment.
(b) Loss of Eligibility. A Pledged Note Receivable ceases being an
Eligible Note Receivable for any reason pursuant to Section 1.46 hereof or an
Applicable Underlying Purchase Transaction ceases being an Eligible Purchase
Transaction pursuant to Section 1.47 hereof.
(c) Attachment; Judgment Tax Liens. The issuance, filing, levy, or
seizure against any Applicable Resort of one or more attachments, injunctions,
executions, tax liens, or judgments for the payment of money cumulatively in
excess of $25,000, that is not discharged in full or stayed within sixty (60)
days after such issuance, filing, levy, or seizure.
(d) Applicable Timeshare Documents. If any Applicable Declaration or
a timeshare regime created thereby at an Applicable Resort is amended, restated,
or terminated (other than amendments which add a phase or are non-material)
without Lender's prior written consent.
(e) Insolvency. If any Applicable Underlying Developer or Applicable
Underlying Guarantor becomes insolvent or otherwise generally unable to pay its
respective debts as and when they become due or payable.
(f) Involuntary Proceedings. If a case is commenced or a petition is
filed against any Applicable Underlying Developer or Applicable Underlying
Guarantor under any Debtor Relief Law, a receiver, conservator, liquidator, or
trustee of such Applicable Underlying Developer or Applicable Underlying
Guarantor or of any material asset thereof is appointed by court order and such
order remains in effect for more than forty-five (45) days, or if any material
asset of any Applicable Underlying Developer or any Applicable Underlying
Guarantor is sequestered by court order and such order remains in effect for
more than forty-five (45) days.
(g) Voluntary Proceedings. If an Applicable Underlying Developer or
an Applicable Underlying Guarantor voluntarily seeks, consents to, or acquiesces
in the benefit of any provision of any Debtor Relief Law, whether now or
hereafter in effect, consents to the filing of any petition against it under
such law, makes an assignment for the benefit of its creditors, admits in
writing its inability to pay its debts generally as they become due, or consents
to or suffers the appointment of a receiver, trustee, liquidator, or conservator
for it or any part of its assets.
(h) Material Adverse Change. If there occurs any material adverse change
-------------------------
in the financial condition of any Applicable Underlying Developer or Applicable
Underlying Guarantor.
(i) Enforceability. If any material term, provision, or condition of
an Applicable Underlying Transaction Document becomes invalid or legally
unenforceable by Borrower and its successors and assigns, including Lender.
(j) Transfer of Property. Except for the sale of Encumbered
Intervals in the ordinary course of an Applicable Underlying Developer's
business in accordance with the terms of the Applicable Underlying Transaction
Documents, and except for transfers due to involuntary condemnation which do not
render an Applicable Resort useless for its intended purpose, if an Applicable
Underlying Developer, without Borrower's and Lender's prior written consent,
sells, conveys, or further encumbers all or any part of its interest in the
Applicable Resort or in any of the personalty located thereon or used or
intended to be used in connection therewith except for phase amendments and any
other non-material amendments. For purposes of this paragraph, an assignment,
sale, or transfer shall also include the transfer of any stock of the Applicable
Underlying Developer other than to an existing shareholder thereof.
(k) Lien Against Applicable Resort. Except for the Permitted Liens
and Encumbrances or as otherwise specifically provided herein to the contrary,
if Borrower or an Applicable Underlying Developer grants any mortgage, Lien, or
other encumbrance upon all or any portion of an Applicable Resort or any
Applicable Underlying Transaction Collateral other than in favor of Lender in
connection with the Loan, provided that such mortgage, Lien, or other
encumbrance has a material adverse effect upon the value of such Applicable
Underlying Transaction Collateral or all or any portion of the Collateral,
unless approved by Lender in writing.
(l) Title. If any violation or breach shall occur in any agreement,
covenant, or restriction affecting title to all or any portion of an Applicable
Resort or any Encumbered Intervals, including but not limited to any Permitted
Liens and Encumbrances, and such violation or breach is not cured within any
time frame allowed under the Applicable Underlying Transaction Documents.
(m) Loss of License. The suspension, loss, revocation or failure to
renew or file for renewal of any legally required registration, approval,
license, permit, or franchise now held or hereafter acquired by an Applicable
Underlying Developer or with respect to the unsold Intervals or the Encumbered
Intervals at an Applicable Resort, or the failure to pay any amount which is
necessary for the continued operation of the unsold Intervals or Encumbered
Intervals or any Applicable Underlying Developer's business in connection with
an Applicable Resort in the same manner as it is being conducted at the time of
such loss, revocation, failure to renew, or failure to pay, which loss,
revocation, failure to renew, or failure to pay is not cured within thirty (30)
days following such occurrence.
(n) Suspension of Sales. The issuance of any stay order, cease and
desist order, injunction, temporary restraining order, or other judicial or
nonjudicial sanction limiting or materially affecting any Interval marketing or
sales activities at an Applicable Resort or the enforcement of Lender's
remedies, which order or sanction is not terminated or dissolved within thirty
(30) days after issuance.
(o) Cross-Default. An "Event of Default" [as defined in Section 7.2
of the RFI ADC Credit Facility] occurs in connection with a loan made with
respect to the same Applicable Resort.
Notwithstanding the foregoing provisions of this Section 7.2 to the
contrary, an Event of Default hereunder shall not be deemed to exist if within
thirty (30) days following the occurrence of any of the Defaults set forth in
this Section 7.2, Borrower pays Lender the total amount of all Advances made by
Lender in respect of the Applicable Underlying Transaction as to which such
occurrence pertained, together with any accrued but unpaid interest thereon and
any other amounts advanced by or otherwise owed to Lender in connection with
such Applicable Underlying Transaction. Promptly following its receipt of all
such amounts, and provided that no Default then exists hereunder, Lender shall
release its Lien against all Applicable Underlying Transaction Collateral that
secures the Applicable Underlying Transaction in question.
SECTION 8. REMEDIES.
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8.1 Remedies Upon Default. Should an Event of Default occur, Lender may
immediately take any one (1) or more of the actions described in this Section 8,
all without notice to Borrower or Guarantor:
(a) Acceleration. Declare the unpaid balance of the Loan, or any
part thereof, immediately due and payable, whereupon the same shall be due
and payable to Lender.
(b) Termination of Obligation to Advance. Terminate any commitment
or obligation of Lender to make Advances under this Agreement in its
entirety, or any portion of any such commitment, and/or terminate Lender's
further performance under this Agreement and/or any other document or
instrument to which Lender and Borrower or Guarantor (or any other
Affiliate of Borrower) are parties, without further liability or
obligation to Borrower or Guarantor, to the extent Lender shall deem
appropriate, all without notice to Borrower or any Guarantor.
(c) Termination of Obligation to Grant Partial Releases. Cease
---------------------------------------------------------
granting or authorizing any Applicable Underlying Developer partial releases
from the Lien of an Applicable Mortgage.
(d) Judgment. Reduce Lender's claim to judgment, foreclose, or
other-wise enforce each and every assignment of an Applicable Mortgage,
Interval Mortgage, and/or any other Lien or security interest in all or
any part of the Collateral by any available judicial or other procedure
under law. Lender's right to xxx and recover a judgment, either before,
after, or during the pendency of any proceeding for the enforcement of the
collateral assignment of the Applicable Mortgage or Interval Mortgage and
the right of Lender to recover such judgment shall not be affected by any
taking, possession, or foreclosure sale hereunder or by the exercise of
any other right, power, or remedy for the enforcement of the collateral
assignment of the Applicable Mortgage or Interval Mortgage or the
foreclosure of the Lien thereof.
(e) Sale of Collateral. Exercise all the rights and remedies of a
secured party under the Code (whether or not the Code applies to the
affected Collateral), including (i) require Borrower to, and Borrower
hereby agrees that it will, at its expense and upon request of Lender
forthwith, assemble all or part of the Collateral as directed by Lender
and make it available to Lender at a place to be designated by Lender that
is reasonably convenient to both parties; (ii) enter upon any premises of
Borrower and take possession of the Collateral; and (iii) sell the
Collateral or any part thereof in one (1) or more parcels at public or
private sale, at any of Lender's offices or elsewhere, at such time or
times, for cash, on credit, or for future delivery, and at such price or
prices and upon such other terms as Lender may deem commercially
reasonable. Borrower agrees that, to the extent notice of sale shall be
required by law, ten (10) days notice of the time and place of any sale
shall constitute reasonable notification. At any sale of the Collateral,
if permitted by law, Lender may bid (which bid may be, in whole or in
part, in the form of cancellation of indebtedness) for the purchase of the
Collateral or any portion thereof for the account of Lender. Borrower
shall remain liable for any deficiency. Lender shall not be required to
proceed against any Collateral but may proceed against Borrower directly.
To the extent permitted by law, Borrower hereby specifically waives all
rights of redemption, stay, or appraisal that it has or may have under any
law now existing or hereafter enacted.
(f) Retention of Collateral. At its discretion, retain such portion
of the Collateral as shall aggregate in value to an amount equal to the
total amount owed by Borrower pursuant to the Loan Documents, in
satisfaction of the Obligations, whenever the circumstances are such that
Lender is entitled and elects to do so under applicable law.
(g) Purchase of Collateral. Buy all or any part of the Collateral at
-----------------------
any public or private sale.
(h) Exercise of Other Rights. Lender shall have all the rights and
remedies of a secured party under the Code and other legal and equitable
rights to which it may be entitled, including, without limitation, and
without notice to Borrower or Guarantor, the right to continue to collect
all payments made on the Pledged Notes Receivable, the Pledged Put and
Reserve Agreements, the Pledged Consumer Notes Receivable and/or the
Purchased Consumer Notes Receivable and to apply such payments to the
Obligations, and to xxx in its own name an Applicable Underlying Developer
or other maker of any defaulted Pledged Note Receivable or Pledged Put and
Reserve Agreement or the maker of any defaulted Pledged Consumer Notes
Receivable or defaulted Purchased Consumer Notes Receivable. Lender may
also exercise any and all other rights or remedies afforded by any other
Applicable Laws or by the Loan Documents or, in the name and stead of
Borrower, the Applicable Underlying Transaction Documents, as Lender shall
deem appropriate, at law, in equity, or otherwise, including but not
limited to the right to bring suit or other proceeding, either for
specific performance (whether or not an adequate remedy exists at law or
failure to grant specific performance would result in irreparable harm) of
any covenant or condition contained in the Loan Documents or the
Applicable Underlying Transaction Documents or in aid of the exercise of
any right or remedy granted to Lender in the Loan Documents. Lender shall
also have the right to require Borrower to assemble any of the Collateral
not in Lender's possession, at Borrower's expense, and make it available
to Lender at a place to be determined by Lender that is reasonably
convenient to both parties, and Lender shall have the right to take
immediate possession of all or any portion of the Collateral or Applicable
Underlying Transaction Collateral and may enter any Applicable Resort or
any of the premises of Borrower or an Applicable Underlying Developer or
wherever the Collateral or Applicable Underlying Transaction Collateral
shall be located, with or without process of law wherever the Collateral
or Applicable Underlying Transaction Collateral may be, and, to the extent
such premises are not the property of Lender, to keep and store the same
on said premises until sold (and if said premises be the property of
Borrower, Borrower agrees not to charge Lender for use and occupancy,
rent, or storage of the Collateral, for a period of at least sixty (60)
days after sale or disposition of the Collateral or Applicable Underlying
Transaction Collateral).
8.2 Notice of Sale. Reasonable notification of the time and place of any
public sale of the Collateral or reasonable notification of the time after which
any private sale or other intended disposition of the Collateral is to be made
shall be sent to Borrower and to any other Person entitled under the Code to
notice; provided, however, that if the Collateral threatens to decline speedily
in value or is of a type customarily sold on a recognized market, Lender may
sell or otherwise dispose of the Collateral without advertisement or other
notice of any kind. It is agreed that notice sent not less than ten (10)
calendar days prior to the taking of the action to which such notice relates is
reasonable notification and notice for the purposes of this Section 8.2. Lender
shall have the right to bid at any public or private sale on its own behalf. Out
of money arising from any such sale, Lender shall retain an amount equal to all
costs and charges, including attorneys' fees, that it has incurred or may incur
for advice, counsel, or other legal services or for pursuing, reclaiming,
seeking to reclaim, taking, keeping, removing, storing, and advertising such
Collateral for sale, selling same, and any and all other charges and expenses in
connection therewith and in satisfying any prior Liens thereon. Any balance
shall be applied against the Obligations, and in the event of deficiency,
Borrower shall remain liable to Lender. In the event of any surplus, such
surplus shall be paid to Borrower or to such other Persons as may be legally
entitled to such surplus. If, by reason of any suit or proceeding of any kind,
nature, or description against Borrower, or by Borrower or any other party
against Lender, which in Lender's determination makes it advisable for Lender to
seek counsel for the protection and preservation of its Liens and security
interests, or to defend its own interest, such expenses and counsel fees shall
be allowed to Lender, and the same shall be made a further charge and Lien upon
the Collateral.
In view of the fact that federal and state securities laws may impose
certain restrictions on the methods by which a sale of certain Collateral may be
effected after an Event of Default, Borrower agrees that upon the occurrence or
existence of an Event of Default, Lender may, from time to time, attempt to sell
all or any part of such Collateral by means of a private placement restricting
the bidding and prospective purchasers to those who will represent and agree
that they are purchasing for investment only and not for, or with a view to,
distribution. In so doing, Lender may solicit offers to buy such Collateral, or
any part of it for cash, from a limited number of investors deemed by Lender, in
its reasonable judgment, to be responsible parties who might be interested in
purchasing the Collateral, and if Lender solicits such offers from not less than
two (2) such investors, then the acceptance by Lender of the highest offer
obtained therefrom shall be deemed to be a commercially reasonable method of
disposition of such Collateral.
8.3 Application of Collateral; Termination of Agreements. Upon the
occurrence of any Event of Default, Lender may, with or without proceeding with
such sale or foreclosure or demanding payment or performance of the Obligations,
without notice, terminate Lender's further performance under this Agreement or
any other agreement or agreements between Lender and Borrower, Guarantor, or any
Affiliate of Borrower, without further liability or obligation by Lender, and
may also, at any time, appropriate and apply on any Obligations any and all
Collateral in its, Custodian's, or Lockbox Agent's possession, custody, or
control any and all balances, credits, deposits, accounts, reserves,
indebtedness, or other monies due or owing to Borrower held by Lender hereunder
or under any other financing agreement or otherwise, whether accrued or not.
Neither such termination, nor the termination of this Agreement by lapse of
time, the giving of notice, or otherwise, shall absolve, release, or otherwise
affect the liability of Borrower in respect of transactions prior to such
termination, or affect any of the Liens, security interests, rights, powers, and
remedies of Lender, but they shall, in all events, continue until all of the
Obligations have been satisfied in full.
8.4 Rights of Lender Regarding Collateral. In addition to all other rights
possessed by Lender, Lender, at its option, may from time to time after there
shall have occurred an Event of Default, and for so long as such Event of
Default remains uncured, take the following actions:
11728.18700.386303-8
(a) Transfer all or any part of the Collateral into the name of
Lender or its nominee;
(b) Take control of the proceeds of any of the Collateral;
(c) Extend or renew the Loan and grant releases, compromises, or
indulgences with respect to the Obligations, any portion thereof, any
extension, or renewal thereof, or any security therefor, to any obligor
hereunder or thereunder; and
(d) Exchange certificates or instruments representing or evidencing
the Collateral for certificates or instruments of smaller or larger
denominations for any purpose consistent with the terms of this Agreement.
8.5 Delegation of Duties and Rights. Lender may perform any of its duties
and/or exercise any of its rights or remedies under the Loan Documents by or
through its officers, directors, employees, attorneys, agents, or other
representatives. To the maximum extent practicable in light of all relevant
facts and circumstances, Lender will attempt to avoid any duplication of effort
and cost to Borrower in connection with any such delegation on Lender's part.
8.6 Lender Not in Control. None of the covenants or other provisions
contained in this Agreement or in any other Loan Document shall give or be
interpreted as giving Lender the right or power to exercise control over the
affairs and/or management of Borrower or Guarantor.
8.7 Waivers. The acceptance by Lender at any time and from time to time of
partial payments of the Loan or performance of the Obligations shall not be
deemed to be a waiver of any Event of Default then existing. No waiver by Lender
of any Event of Default shall be deemed to be a waiver of any other or
subsequent Event of Default. No delay or omission by Lender in exercising any
right or remedy under the Loan Documents shall impair such right or remedy or be
construed as a waiver thereof or an acquiescence therein, nor shall any single
or partial exercise of any such right or remedy preclude other or further
exercises thereof, or the exercise of any other right or remedy under the Loan
Documents or otherwise. Further, except as otherwise expressly provided in this
Agreement or by applicable law, Borrower and each and every surety, endorser,
guarantor, and other party liable for the payment or performance of all or any
portion of the Obligations, severally waive notice of the occurrence of any
Default, Event of Default, presentment, and demand for payment, protest, and
notice of protest, notice of intention to accelerate, acceleration, and
nonpayment, and agree that their liability shall not be affected by any renewal
or extension in the time of payment of the Loan, or by any release or change in
any security for the payment or performance of the Loan, regardless of the
number of such renewals, extensions, releases, or changes.
8.8 Cumulative Rights. All rights and remedies available to Lender under
the Loan Documents shall be cumulative of and in addition to all other rights
and remedies granted to Lender under any of the Loan Documents, at law, or in
equity, whether or not the Loan is due and payable and whether or not Lender
shall have instituted any suit for collection or other action in connection with
or pursuant to the Loan Documents.
8.9 Expenditures by Lender. Any amounts expended by or on behalf of Lender
pursuant to the exercise of any right or remedy provided herein or available at
law or in equity shall become part of the Obligations and shall bear interest at
the Default Rate from the date of such expenditure until the date repaid.
8.10 Diminution in Value of Collateral. Lender shall not have any
liability or responsibility whatsoever for any diminution or loss in value of
any of the Collateral or Applicable Underlying Transaction Collateral,
specifically including that which may arise from Lender's negligence or
inadvertence, whether such negligence or inadvertence is the sole or
contributing cause of any damage.
SECTION 9. CERTAIN RIGHTS OF LENDER.
------------------------
9.1 Protection of Collateral. Lender may, at any time and from time to
time, take such actions as Lender deems necessary or appropriate to protect
Lender's Liens and security interests in and to preserve the Collateral, and to
establish, maintain, and protect the enforceability of Lender's rights with
respect thereto, all at the expense of Borrower. Borrower agrees to cooperate
fully with all of Lender's efforts to preserve the Collateral and Lender's
Liens, security interests, and rights and will take such actions to preserve the
Collateral and Lender's Liens, security interests, and rights as Lender may
direct, including, without limitation, by promptly paying, upon Lender's demand
therefor, all documentary stamp taxes or other taxes that may be or may become
due in respect of any of the Collateral. All of Lender's expenses of preserving
the Collateral and its Liens and security interests and rights therein shall be
added to the principal amount of the Loan and secured by the Collateral.
9.2 Performance by Lender. If Borrower fails to perform any agreement
contained herein, Lender may itself perform, or cause the performance of, such
agreement, and the expenses of Lender incurred in connection therewith shall be
payable by Borrower under Section 9.5 hereof. In no event, however, shall Lender
have any obligation or duty whatsoever to perform any covenant or agreement of
Borrower or any Applicable Underlying Developer contained herein or in any of
the other Loan Documents, any Applicable Underlying Transaction Documents, or
any Applicable Timeshare Documents, and any such performance by Lender shall be
wholly discretionary with Lender. The performance by Lender of any agreement or
covenant of Borrower or any Applicable Underlying Developer on any occasion
shall not give rise to any duty on the part of Lender to perform any such
agreements or covenants on any other occasion or at any time. In addition,
Borrower acknowledges that Lender shall not at any time or under any
circumstances whatsoever have any duty to Borrower or to any other Person to
exercise any of Lender's rights or remedies hereunder.
9.3 No Liability of Lender. Lender is obligated to perform all covenants
and obligations of Lender hereunder, including but not limited to making
Advances to Borrower, subject to all of the terms, provisions, and conditions
hereof and of the other Loan Documents. However, neither the acceptance of this
Agreement by Lender nor the exercise of any rights hereunder by Lender shall be
construed in any way as an assumption by Lender of any obligations,
responsibilities, or duties of Borrower or any Applicable Underlying Developer
arising in connection with any Applicable Resort, all or any portion of the
Collateral or Applicable Underlying Transaction Collateral, under any Applicable
Timeshare Documents, or under any Applicable Laws, or in connection with any
other business of Borrower or the Collateral, nor shall it otherwise bind Lender
to the performance of any obligations with respect to an Applicable Resort, the
Collateral, or any Applicable Underlying Transaction Collateral, it being
expressly understood that Lender shall not be obligated to perform, observe, or
discharge any obligation, responsibility, duty, or liability of Borrower or any
Applicable Underlying Developer with respect to any Applicable Resort, any of
the Collateral, any of the Applicable Underlying Transaction Collateral, under
any of the Applicable Timeshare Documents, or under any Applicable Laws,
including but not limited to appearing in or defending any action, expending any
money, or incurring any expense in connection therewith. Without limiting the
foregoing, neither this Agreement, any action or actions on the part of Lender
taken hereunder nor the acquisition of the Pledged Notes Receivable and/or the
other Collateral by Lender prior to or following the occurrence of an Event of
Default shall constitute an assumption by Lender of any obligations of Borrower
with respect to an Applicable Resort or such Collateral, or any documents or
instruments executed in connection therewith, including but not limited to the
Applicable Underlying Transaction Documents, and Borrower shall continue to be
liable for all of its obligations thereunder or with respect thereto. Borrower
hereby agrees to indemnify, protect, defend, and hold Lender harmless from and
against any and all claims, demands, causes of action, losses, damages,
liabilities, suits, costs, and expenses, including, without limitation,
attorneys' fees and court costs, asserted against or incurred by Lender by
reason of, arising out of, or connected in any way with (i) any failure or
alleged failure of Borrower to perform any of its covenants or obligations with
respect to an Applicable Resort or all or any portion of the Collateral or
Applicable Underlying Transaction Collateral; (ii) a breach of any
certification, representation, warranty, or covenant of Borrower set forth in
any of the Loan Documents; (iii) the ownership of the Pledged Notes Receivable,
the Pledged Put and Reserve Agreements, the Pledged Consumer Notes Receivable,
the Purchased Consumer Notes Receivable, the other Collateral, and the rights,
titles, and interests assigned hereby, or intended so to be; (iv) the
debtor-creditor relationships between Borrower, on the one hand, and the
Applicable Underlying Developers or Lender, as the case may be, on the other
hand; or (v) the Pledged Notes Receivable, the Pledged Put and Reserve
Agreements, the Applicable Mortgages, the Pledged Consumer Notes Receivable, the
Purchased Consumer Notes Receivable, the Interval Mortgages, or the management
or operation of the Applicable Resorts. The obligations of Borrower to
indemnify, protect, defend, and hold Lender harmless as provided in this
Agreement are absolute, unconditional, present, and continuing, and shall not be
dependent upon or affected by the genuineness, validity, regularity, or
enforceability of any claim, demand, or suit from which Lender is indemnified.
The indemnity provisions in this Section 9.3 shall survive the complete
satisfaction of the Obligations and the termination of this Agreement and remain
binding and enforceable against Borrower, together with its successors and
assigns. Borrower hereby waives all notices with respect to any losses, damages,
liabilities, suits, costs, and expenses, and all other demands whatsoever hereby
indemnified, and agrees that its obligations under this Agreement shall not be
affected by any circumstances, whether or not referred to above, that might
otherwise constitute legal or equitable discharges of its obligations hereunder.
If a court of competent jurisdiction should determine that Borrower is entitled
to recover damages from Lender for any reason or upon any cause, claim, or
counterclaim, in connection with the Loan or the transactions provided for or
contemplated pursuant to this Agreement or the other Loan Documents, Borrower
stipulates and agrees that any such damages or awards shall be limited to the
amount of interest theretofore paid to Lender pursuant to the Note as of the
date of such determination.
9.4 Right to Defend Action Affecting Security. Lender may, at Borrower's
expense, appear in and defend any action or proceeding, at law or in equity,
that Lender in good faith believes may affect the Liens or security interests
granted under this Agreement, including, without limitation, with respect to the
Pledged Notes Receivable, the Pledged Put and Reserve Agreements, the Applicable
Mortgages, the Pledged Consumer Notes Receivable, the Purchased Consumer Notes
Receivable, the Interval Mortgages, the value of the Collateral, or Lender's
rights under any of the Loan Documents.
9.5 Expenses. All expenses payable by Borrower under any provision of this
Agreement shall be Obligations of Borrower, and if paid by Lender, shall be
repaid by Borrower to Lender, upon demand, and shall bear interest at the
Default Rate from the date of payment of such expense(s) by Lender until repaid
by Borrower.
9.6 Lender's Right of Set-Off. Lender shall have the right to set-off
against any or all of the Collateral any Obligations then due and unpaid by
Borrower.
9.7 Right of Lender to Extend Time of Payment, Substitute, Release
Security, Etc. Without affecting the liability of any Person or entity,
including, without limitation, any Applicable Underlying Developer, for the
payment of any of the Obligations and without affecting or impairing Lender's
Lien and other rights in and to the Collateral, or the remainder thereof, as
security for the full amount of the Loan unpaid and the Obligations, Lender may
from time to time, without notice: (a) release any Person liable for the payment
of the Loan; (b) extend the time or otherwise alter the terms of payment of the
Loan; (c) accept additional security for the Obligations of any kind, including
deeds of trust or mortgages and security agreements; (d) alter, substitute, or
release any Collateral; (e) realize upon any Collateral for the payment of all
or any portion of the Loan in such order and manner as it may deem fit; and/or
(f) join in any subordination or other agreement affecting this Agreement or the
lien or charge thereof.
9.8 Assignment of Lender's Interest. Lender shall have the right to assign
the Loan and all or any portion of its rights in or pursuant to this Agreement
or any of the other Loan Documents to any subsequent holder or holders of the
Note or the Obligations that assumes Lender's obligations hereunder and is a
bank, pension fund, insurance company, or other institutional investor. The
consent of Borrower shall not be required prior to any such assignment's
becoming effective. Borrower shall be directly obligated to each assignee with
respect to the Obligations assigned to such assignee and shall have no rights of
setoff or other remedies against the assignee as a consequence of Lender's acts
or omissions under this Agreement prior to such assignment. Upon the
consummation of any assignment to an assignee pursuant to this Section 9.8,
Lender and Borrower shall, if Lender or its assignee desires that the assignment
be evidenced in part by a new promissory note, make appropriate arrangements for
a new promissory note or, as appropriate, a replacement promissory note to be
issued to Lender and for a new promissory note or, as appropriate, a replacement
promissory note, to be issued to the assignee, in each case in principal amounts
reflecting their respective rights to payment.
9.9 Notice to Purchaser. Borrower authorizes Lender (but Lender shall not
be obligated) to communicate at any time and from time to time with any
Applicable Underlying Developer or any other Person primarily or secondarily
liable under an Applicable Underlying Transaction with regard to the Lien of the
Lender thereon and any other matter relating thereto; provided, however, that
Lender shall not initiate any communication regarding the Applicable Underlying
Transaction with any Applicable Underlying Developer or any other Person
primarily or secondarily liable under an Applicable Underlying Transaction
unless an Event of Default exists, although it may require Borrower or Servicing
Agent to do so. By no later than the Closing Date, Borrower shall deliver to
Lender notifications to the Applicable Underlying Developers executed in blank
by Borrower and in form acceptable to Lender, pursuant to which the Applicable
Underlying Developers (or other obligors) are directed to remit all payments in
respect of the Collateral to Lockbox Agent or as Lender may otherwise require.
9.10 Collection of the Notes. Borrower hereby directs and authorizes each
Applicable Underlying Developer and other Person liable for the payment and
performance of any Applicable Underlying Transaction, Pledged Consumer Note
Receivable or Purchased Consumer Note Receivable, and promptly after the Closing
Date, shall direct in writing each such Person, to pay each installment thereon
to Lockbox Agent, pursuant to the Lockbox Agreement, unless and until directed
otherwise by written notice from Lender or, at Lender's direction, from
Borrower, after which such parties are and shall be directed to make all further
payments on the Applicable Underlying Transactions, the Pledged Consumer Notes
Receivable or the Purchased Consumer Notes Receivable in accordance with the
directions of Lender; provided, however, that Lender shall not give any such
notice to any Person unless an Event of Default exists, although it may require
Borrower to do so. Following the occurrence of an Event of Default, Lender shall
have the right to require that all payments becoming due under the Applicable
Underlying Transactions, the Pledged Consumer Notes Receivable or the Purchased
Consumer Notes Receivable be paid directly to Lender or as it otherwise may
direct, and Lender is hereby authorized to receive, collect, hold, and apply the
same in accordance with the provisions of this Agreement but shall provide
Borrower with accountings of all such activity on at least as frequent a basis
as Lockbox Agent was obligated to provide accountings to Lender and Borrower,
pursuant to the Lockbox Agreement. In the event that following the occurrence of
an Event of Default, Lender or Lockbox Agent does not receive any installment of
principal or interest due and payable under any of the Applicable Underlying
Transactions, the Pledged Consumer Notes Receivable or Purchased Consumer Notes
Receivable on or prior to the date upon which such installment becomes due,
Lender may, at its election (but without any obligation to do so), give or cause
Lockbox Agent to give notice of such event of default to the defaulting party or
parties, and Lender shall have the right (but not the obligation), subject to
the terms of such Notes, to accelerate payment of the unpaid balance of any of
the Applicable Underlying Transactions, the Pledged Consumer Notes Receivable or
Purchased Consumer Notes Receivable in default and to foreclose each of the
Applicable Mortgages and/or Interval Mortgages securing the payment thereof, and
to enforce any other remedies available to the holder of such Applicable
Underlying Transactions, Pledged Consumer Notes Receivable or Purchased Consumer
Notes Receivable with respect to such event of default. Borrower hereby further
authorizes, directs, and empowers Lender (and Lockbox Agent or any other Person
as may be designated by Lender in writing) to collect and receive all checks and
drafts evidencing such payments and to endorse such checks or drafts in the name
of Borrower and, upon such endorsements, to collect and receive the money
therefor. The right to endorse checks and drafts granted pursuant to the
preceding sentence is irrevocable by Borrower, and the banks or banks paying
such checks or drafts upon such endorsements, as well as the signers of the
same, shall be as fully protected as though the checks or drafts had been
endorsed by Borrower.
9.11 Power of Attorney. Borrower does hereby irrevocably constitute and
appoint Lender as Borrower's true and lawful agent and attorney-in-fact, with
full power of substitution, for Borrower and in Borrower's name, place, and
stead, or otherwise, to (a) endorse any checks or drafts payable to Borrower in
the name of Borrower and in favor of Lender as provided in Section 9.10 hereof;
(b) to demand and receive from time to time any and all property, rights,
titles, interests, and Liens hereby sold, assigned, and transferred, or intended
so to be, and to give receipts for same; (c) upon an Event of Default, to
collect all rent, revenues, and income, pursuant to the terms of any Applicable
Mortgage or Interval Mortgage; (d) from time to time, to institute and
prosecute, in Lender's own name, any and all proceedings at law, in equity, or
otherwise, that Lender may deem proper in order to collect, assert, or enforce
any claim, right, or title, of any kind, in and to the property, rights, titles,
interests, and Liens hereby sold, assigned, or transferred, or intended so to
be, and to defend and compromise any and all actions, suits, or proceedings in
respect of any of the said property, rights, titles, interests, and Liens; (e)
upon an Event of Default, to change Borrower's post office mailing address; and
(f) generally to do all and any such acts and things in relation to the
Collateral as Lender shall in good xxxxx xxxx advisable. Borrower hereby
declares that the appointment made and the powers granted pursuant to this
Section 9.11 are coupled with an interest and are and shall be irrevocable by
Borrower in any manner, or for any reason, unless and until a release of the
same is executed by Lender and duly recorded in the appropriate public records
of both Onondaga County, New York, and Maricopa County, Arizona.
9.12 Relief from Automatic Stay, Etc. To the fullest extent permitted by
law, in the event that Borrower or Guarantor shall make application for or seek
relief or protection under the federal bankruptcy code (the "Bankruptcy Code")
or any other Debtor Relief Laws, or in the event that any involuntary petition
is filed against the Borrower or Guarantor under such Code or other Debtor
Relief Laws and not dismissed with prejudice within forty-five (45) days, the
automatic stay provisions of Section 362 of the Bankruptcy Code are hereby
modified as to Lender to the extent necessary to implement the provisions hereof
permitting set-off and the filing of financing statements or other instruments
or documents; and Lender shall automatically and without demand or notice (each
of which is hereby waived by Borrower) be entitled to immediate relief from any
automatic stay imposed by Section 362 of the Bankruptcy Code or otherwise, on or
against the exercise of the rights and remedies otherwise available to Lender as
provided in the Loan Documents. In addition, in the event that relief is sought
by or against Borrower under the Bankruptcy Code, Borrower agrees not to seek,
directly or indirectly, in any ensuing bankruptcy proceeding, any extension of
the exclusivity period otherwise available to a debtor under the Bankruptcy
Code, including, without limitation, the exclusivity period provided for under
Section 1121(b) of the Bankruptcy Code.
9.13 Investigations and Inquiries. Borrower hereby authorizes Lender to
conduct such investigations and inquiries concerning Borrower, Guarantor, the
Applicable Resorts, the Applicable Underlying Developers, the Applicable
Underlying Guarantors, the Collateral, and the Applicable Underlying Transaction
Collateral as Lender shall deem necessary or desirable in connection with its
monitoring of the Loan and the Collateral therefor, and all such Persons of whom
Lender may make such inquiry are empowered to cooperate with, and to provide all
requested information to, Lender.
9.14 Verification of Use. Lender shall be under no duty or obligation to
ascertain the manner in which Borrower or any Applicable Underlying Developer
has used or will use the proceeds of the Loan or those of any Applicable
Underlying Transaction. Lender's sole obligation shall be to advance the
proceeds of the Loan subject to, and in strict accordance with, the terms,
provisions, and conditions of this Agreement and the other Loan Documents. At no
time shall Lender be obligated to disburse funds in excess of amounts
recommended by Servicing Agent. Lender's obligation to fund the Loan is limited
to the principal amount set forth herein and in the Note. Borrower is solely
responsible for obtaining any other financing that may be necessary in order to
enable it to fund the Applicable Underlying Transactions or to repay the Loan on
or prior to the Maturity Date. It is expressly understood that Lender has no
responsibility or obligation whatsoever to provide to Borrower any further
financing, whether in connection with the Applicable Underlying Transactions or
otherwise.
SECTION 10. TERM OF AGREEMENT.
-----------------
This Agreement shall continue in full force and effect, and the Liens and
security interests granted hereby and the duties, covenants, and liabilities of
Borrower hereunder, and all the terms, conditions, and provisions hereof
relating thereto shall continue to be fully operative until all of the
Obligations have been satisfied in full. Borrower expressly agrees that if
either Borrower or Guarantor makes a payment to Lender, which payment or any
part thereof is subsequently invalidated, declared to be fraudulent or
preferential, or otherwise required to be repaid to a trustee, receiver, or any
other party under any Debtor Relief Laws, state or federal law, common law, or
equitable cause, then to the extent of such repayment, the Obligations or any
part thereof intended to be satisfied and the Liens and security interests
provided for hereunder securing the same shall be revived and continued in full
force and effect as if said payment had not been made.
SECTION 11. MISCELLANEOUS.
-------------
11.1 Notices. All notices, requests or demands required or permitted to be
given under the Loan Documents shall be in writing, and shall be deemed
effective (a) upon hand delivery, if hand delivered; (b) one (1) Business Day
after such are deposited for delivery via Federal Express or other nationally
recognized overnight courier service; or (c) three (3) Business Days after such
are deposited in the United States mails, certified or registered mail, all with
delivery charges and/or postage prepaid, addressed to the address specified
below, or to such other address as the party being notified may have designated
in a notice given to the other party. Written notice may be given by telecopy to
the telecopier number specified below or to such other telecopier number as the
party being notified may have designated in a notice given to the other party,
which notice shall be effective on the day of receipt if received during the
recipient's normal business hours on the day of receipt or otherwise on the next
Business Day; provided that such notice shall not be deemed effective unless not
later than the next Business Day, a copy of such notice is hand delivered or
deposited for delivery via courier or in the United States mails in accordance
with the requirements set forth above.
If to Borrower: Resort Funding, Inc.
Xxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, President
Telecopy No.: (000) 000-0000
With a copy to: Resort Funding, Inc.
x/x Xxxxxxx Xxxxxxx
000 Xxxx Xxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esq., General Counsel
Telecopy No.: (000) 000-0000
If to Lender: FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President- Resort Finance
Telecopy No.: (000) 000-0000
With a copy to: FINOVA Capital Corporation
0000 Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Vice President-Associate General Counsel
Telecopy No.: (000) 000-0000
11.2 Survival. All representations, warranties, covenants, and agreements
made by Borrower herein, in the other Loan Documents, or in any other agreement,
document, instrument, or certificate delivered by or on behalf of Borrower under
or pursuant to the Loan Documents shall be considered to have been relied upon
by Lender and shall survive the delivery to Lender of such Loan Documents (and
each part thereof), regardless of any investigation made by or on behalf of
Lender.
11.3 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS
MAY BE EXPRESSLY PROVIDED THEREIN TO THE CONTRARY) SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, EXCLUSIVE OF ITS
CHOICE OF LAWS PRINCIPLES.
11.4 CHOICE OF JURISDICTION; WAIVER OF VENUE. EACH OF BORROWER AND LENDER:
(A) HEREBY IRREVOCABLY SUBMITS ITSELF TO THE PROCESS, JURISDICTION AND VENUE OF
THE COURTS OF THE STATE OF ARIZONA, MARICOPA COUNTY, AND TO THE PROCESS,
JURISDICTION, AND VENUE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
ARIZONA, FOR THE PURPOSES OF SUIT, ACTION OR OTHER PROCEEDINGS ARISING OUT OF OR
RELATING TO ANY DOCUMENT OR THE SUBJECT MATTER THEREOF, OR, IF LENDER INITIATES
SUCH ACTION, ANY COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION, AND THE
CHOICE OF SUCH VENUE SHALL IN ALL INSTANCES BE AT LENDER'S ELECTION; AND (B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEREBY WAIVES AND AGREES NOT
TO ASSERT BY WAY OF MOTION, DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR
PROCEEDING ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF
THE ABOVE-NAMED COURTS, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN
INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS
IMPROPER. EACH OF BORROWER AND LENDER HEREBY WAIVES THE RIGHT TO COLLATERALLY
ATTACK ANY JUDGMENT OR ACTION IN ANY OTHER FORUM.
Borrower Initials (________)
Lender Initials (________)
11.5 Limitation on Interest. Lender and Borrower intend to comply at all
times with all applicable usury laws. All agreements between Lender and
Borrower, whether now existing or hereafter arising and whether written or oral,
are hereby limited so that in no contingency, whether by reason of demand or
acceleration of the maturity of the Note or otherwise, shall the interest
contracted for, charged, received, paid, or agreed to be paid to Lender exceed
the highest lawful rate permissible under applicable usury laws. If, from any
circumstance whatsoever, fulfillment of any provision hereof, of the Note, or of
any other Loan Documents shall involve transcending the limit of such validity
prescribed by any law which a court of competent jurisdiction may deem
applicable hereto, then ipso facto, the obligation to be fulfilled shall be
reduced to the limit of such validity; and if from any circumstance Lender shall
ever receive anything of value deemed interest by applicable law that would
exceed the highest lawful rate, such amount which would be excessive interest
shall be applied to the reduction of the principal of the Loan and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal of the Loan, such excess shall be refunded to Borrower. All interest
paid or agreed to be paid to Lender shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full period
until payment in full of the principal so that the interest on the Loan for such
full period shall not exceed the highest lawful rate. Borrower agrees that in
determining whether or not any interest payment under the Loan Documents exceeds
the highest lawful rate, any non-principal payment (except payments specifically
described in the Loan Documents as "interest"), including without limitation,
prepayment fees and late charges, shall, to the maximum extent not prohibited by
law, be deemed an expense, fee, premium, or penalty rather than interest. Lender
hereby expressly disclaims any intent to contract for, charge, or receive
interest in an amount that exceeds the highest lawful rate. The provisions of
the Note, this Agreement, and all other Loan Documents are hereby modified to
the extent necessary to conform with the limitations and provisions of this
Section 11.5, and this Section 11.5 shall govern over all other provisions in
any document or agreement now or hereafter existing. This Section 11.5 shall
never be superseded or waived unless there is a written document executed by
Lender and Borrower expressly declaring the usury limitation of this Agreement
to be null and void, and no other method or language shall be effective to
supersede or waive this paragraph.
11.6 Invalid Provisions. If any provision of this Agreement or any of the
other Loan Documents is held to be illegal, invalid, or unenforceable under
present or future laws effective during the term thereof, such provision shall
be fully severable, this Agreement and the other Loan Documents shall be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof or thereof, and the remaining provisions
hereof or thereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom. Any provision of this Agreement or any other Loan Document that is
held to be illegal, invalid, or unenforceable in a particular Applicable
Jurisdiction shall remain valid and enforceable in all other Applicable
Jurisdictions. Furthermore, in lieu of any such illegal, invalid, or
unenforceable provision, there shall be added automatically as a part of this
Agreement and/or the other Loan Documents (as the case may be) a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
11.7 Successors and Assigns. This Agreement and the other Loan Documents
shall be binding upon and inure to the benefit of Borrower and Lender and their
respective successors and assigns; provided, however, that Borrower may not
transfer or assign any of its rights or obligations under this Agreement or the
other Loan Documents without the prior written consent of Lender. This Agreement
and the transactions provided for or contemplated hereunder or under any of the
other Loan Documents are intended solely for the benefit of the parties hereto.
No third party shall have any rights or derive any benefits under or with
respect to this Agreement or the other Loan Documents except as specifically set
forth herein or otherwise provided in a written document signed by Borrower and
Lender. No Person other than Borrower shall have standing to require
satisfaction of such conditions in accordance with their terms or be entitled to
assume that Lender will refuse to make Advances in the absence of strict
compliance with any or all thereof, and no other Person, other than Borrower,
under any circumstances whatsoever, shall be deemed to be a beneficiary of such
conditions, any or all of which Lender freely may waive, in whole or in part, at
any time if it deems it desirable to do so.
11.8 Amendment. This Agreement (including all exhibits and schedules
hereto) may not be amended or modified, and no term, provision, or condition
hereof may be waived, except by a written instrument that is signed by all of
the parties hereto.
11.9 Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signature thereto and hereto were on the same instrument. This
Agreement shall become effective upon Lender's receipt of one (1) or more
counterparts hereof signed by Borrower and Lender.
11.10 Lender Not a Fiduciary. The relationship between Borrower and Lender
is solely that of debtor and creditor, and Lender has no fiduciary or other
special relationship with Borrower and no term or provision of any of the Loan
Documents shall be construed so as to deem the relationship between Borrower and
Lender to be other than that of debtor and creditor.
11.11 Release and Return of Notes Receivable and Collateral. In the event
that all obligations of an Applicable Underlying Developer under Applicable
Underlying Transaction Documents have been paid and performed in full, then
within a reasonable time thereafter not to exceed thirty (30) days, Lender shall
remove (or authorize Borrower to remove) from any related Pledged Notes
Receivable and the related Pledged Consumer Notes Receivable the allonges
endorsing such instruments to Lender and deliver such Pledged Notes Receivable,
Pledged Consumer Notes Receivable and any Applicable Underlying Transaction
Collateral, together with any other nonrecourse collateral reassignment
documents requested and prepared by Borrower, at Borrower's sole cost and
expense, free and clear of any Liens or encumbrances by any Person claiming by,
through, or under Lender. In the event that all Obligations are satisfied,
Lender shall release all Collateral for the Loan as set forth in this Section
11.11.
11.12 Accounting Principles. Where the character or amount of any asset or
liability or item of income or expense is required to be determined or any
consolidation or other accounting computation is required to be made for the
purposes of this Agreement, the same shall be determined or made in accordance
with GAAP consistently applied at the time in effect, to the extent applicable,
except where such principles are inconsistent with the requirements of this
Agreement.
11.13 Entire Agreement; Inconsistencies. This Agreement and the other Loan
Documents, including the exhibits and schedules to them, comprise the entire
agreement between the parties relating to the subject matter hereof and
supersede all prior agreements and understandings, both oral and written,
between the parties hereto relating to the subject matter hereof (except as
otherwise expressly provided herein), may not be changed or terminated orally or
by course of conduct, and shall be deemed effective as of the Closing Date. In
the event of any ambiguity or inconsistency between the provisions of the Loan
Documents, the provisions imposing the greatest obligations upon Borrower and
granting the most expansive rights to Lender shall control.
11.14 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF BORROWER AND LENDER HEREBY
KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT
TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY
ANY RIGHT, POWER, REMEDY, OR DEFENSE ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREIN OR
THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH RESPECT TO
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN),
OR ACTIONS OF ANY PARTY; AND EACH AGREES THAT ANY SUCH ACTION OR PROCEEDING
SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. EACH OF BORROWER AND LENDER
FURTHER WAIVES ANY RIGHT TO SEEK TO CONSOLIDATE ANY SUCH LITIGATION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER LITIGATION IN WHICH A JURY TRIAL
CANNOT OR HAS NOT BEEN WAIVED. FURTHER, BORROWER HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF LENDER, INCLUDING LENDER'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. BORROWER
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTANCE OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. THE WAIVER
AND STIPULATIONS OF BORROWER AND LENDER IN THIS SECTION 11.14 SHALL SURVIVE THE
FINAL PAYMENT OR PERFORMANCE OF ALL OF THE OBLIGATIONS AND THE RESULTING
TERMINATION OF THIS AGREEMENT.
Borrower Initials (________)
Lender Initials (________)
11.15 Incorporation of Exhibits and Schedules. This Agreement, together
with all exhibits and schedules hereto, constitute one (1) document and
agreement that is referred to herein by the use of the defined term "Agreement."
Such exhibits and schedules are incorporated herein as though fully set out in
this Agreement. The definitions contained in any part of this Agreement shall
apply to all parts of this Agreement.
11.16 Consent to Advertising and Publicity of Applicable Timeshare
Documents. Lender routinely advertises the transactions to which it is a party
in newspapers, industry periodicals, and other miscellaneous print and
electronic literature. However, Lender will not use the name, logo, insignia,
descriptive art work, trade name, trademark, or other similar material of
Borrower or Guarantor, whether or not protected by copyright (or otherwise), in
any such advertisement, without the consent of the Person whose name or property
right is being used; and Lender will not identify any Applicable Underlying
Transaction in any such advertisement without the consent of Borrower. Any
consent required from a Person pursuant to the preceding provisions of this
Section 11.16 may be given or withheld in such Person's sole and absolute
discretion.
11.17 Directly or Indirectly. Where any provision in the Agreement refers
to action to be taken by any Person, or which such Person is prohibited from
taking, such provisions shall be applicable, whether such action is taken
directly or indirectly by such Person.
11.18 Captions. Section captions have been included in this Agreement for
convenience of reference only and should not be relied upon or used in
interpreting the meaning or intent of any provision hereof.
11.19 Gender. Words of any gender in this Agreement shall include each other
------
gender, where appropriate.
11.20 No Duty. All attorneys, accountants, appraisers, consultants,
custodians, and other professionals retained by Lender in connection with the
Loan shall have the right to act exclusively in the interest of Lender and shall
have no duty of disclosure, duty of loyalty, duty of care, or other duty or
obligation of any kind or nature whatsoever to Borrower or any other Person.
11.21 Reimbursement for Taxes. Borrower will promptly, upon written demand
from Lender, reimburse Lender for any taxes assessed against Lender by the State
of Arizona or any subdivision thereof that is on account of or measured by the
interest or other income received by Lender under the Pledged Notes Receivable,
Applicable Mortgages or other Applicable Underlying Transaction Documents
assigned to Lender pursuant to this Agreement or in any way imposed upon Lender
in connection with the transactions contemplated hereunder, including, without
limitation, any general intangible tax or documentary tax; provided, however,
that Borrower shall not be responsible for paying any income or profit-based tax
assessed against Lender.
11.22 Submissions.
-----------
(a) All documents, agreements, reports, surveys, appraisals,
insurance policies, references, financial information, and other submissions
required to be furnished by Borrower or Guarantor to Lender hereunder or
pursuant to any of the other Loan Documents (collectively "Submissions") shall
be in form and content satisfactory to Lender and prepared at Borrower's or an
Applicable Underlying Developer's expense.
(b) Lender shall have the prior right of approval of any Person
responsible for preparing a Submission (a "Preparer") and may reject any
Submission if Lender believes that the experience, skill, or reputation of the
applicable Preparer is unsatisfactory in any respect whatsoever.
(c) All reports and appraisals required to be furnished by Borrower
or Guarantor to Lender hereunder or pursuant to any of the other Loan Documents
shall specifically be addressed to Lender and include the following statement:
THE UNDERSIGNED ACKNOWLEDGES THAT FINOVA CAPITAL CORPORATION IS
RELYING ON THE WITHIN INFORMATION IN CONNECTION WITH ITS ADVANCES TO
BORROWER ON THE SUBJECT PROPERTY.
(d) Whether or not expressly stated herein, all consents and
approvals granted by Lender hereunder shall be valid and effective only if
contained in a written document or instrument that has been signed by a duly
authorized representative of Lender.
11.23 Confidentiality. Each party hereto acknowledges and agrees that the
material terms hereof and of the other Loan Documents are and shall remain
strictly confidential. No party hereto shall ever disclose the material terms
and provisions hereof without the express prior written consent of the other
parties; provided, however, that the disclosure of the material terms and
provisions of this Agreement to a party's shareholders, officers, directors,
principals, attorneys, accountants, or lenders, or if required by law or
subpoena, shall not constitute a breach of this Section 11.23. The parties
hereto shall take all appropriate measures to prevent the inadvertent or
unintentional disclosure of the material terms and provisions hereof.
11.24 Year 2000 Issues. Borrower has taken all action necessary to assure
that there will be no material adverse change to Borrower's business by reason
of the advent of the year 2000, including, without limitation, that all
computer-based systems, embedded microchips and other processing capabilities
effectively recognize and process dates after April 1, 1999. Borrower has taken
all actions necessary in Lender's reasonable judgment to assure that there will
be no material adverse change to Borrower's business by reason of the advent of
the year 2000, including without limitation that all computer-based systems,
embedded microchips and other processing capabilities effectively recognize and
process all dates. Promptly after Lender's request from time to time, Borrower
shall provide to Lender assurance reasonably acceptable to Lender that
Borrower's computer-based systems, embedded microchips and other processing
capabilities effectively recognize and process all dates.
11.25 Standards Applied to Lender's Actions. Unless otherwise specifically
stipulated elsewhere in the Loan Documents, if a matter is left in the Loan
Documents to the decision, right, requirement, request, determination, judgment,
opinion, approval, consent, waiver, satisfaction, acceptance, agreement, option,
election or discretion of Lender, its employees, Lender's counsel or any agent
for or independent contractor of Lender, such action shall be deemed to be
exercisable by Lender or such other person in its sole and absolute discretion
and according to standards established in its sole, absolute and unlimited
discretion. Without limiting the generality of the foregoing, "option" and
"discretion" shall be implied by use of the words "if" or "may". However,
whenever the Loan Documents contain the terms "reasonably satisfactory to
Lender," "reasonably determined by Lender," "reasonably acceptable to Lender,"
"reasonable consent of Lender," "Lender shall reasonably elect," "Lender shall
reasonably request," "reasonably approved by Lender" or similar terms wherein
the word reasonable or a derivative thereof is used with regard to an action of
Lender: (a) such terms shall mean satisfactory to, at the election of,
determined by, acceptable to or requested by, as applicable, Lender in its sole
(but reasonably exercised) discretion under standards applicable to commercial
lenders under the laws of the State of Arizona; and (b) it is the intention of
the parties to permit Lender a broad latitude in which to exercise its
discretion, acknowledging that, while such discretion may not be exercised
arbitrarily or capriciously, it may be exercised conservatively for Lender's
protection and benefit. By way of illustration, and not of limitation, it shall
not be unreasonable for Lender, in exercising its discretion, to make
conservative assumptions regarding the possible outcome of future events.
11.26 Scope of Attorneys' Fees. As used in the Loan Documents, the term
"attorneys' fees" includes the reasonable fees of attorneys licensed to practice
law in any jurisdiction, law clerks, paralegals, investigators and others not
admitted to the bar but performing services under the supervision of a licensed
attorney, and the expenses (including, without limitation, normal and customary
charges for telecopy and photocopy services and clerical overtime) incurred by
them in the performance of their services. As used in the Loan Documents,
attorneys' fees incurred by Lender in the enforcement of any remedy or covenant
include, without limitation, attorneys' fees incurred in any foreclosure of
liens or security interests granted under Loan Documents, in protecting or
sustaining the lien or priority of the Collateral, or in any proceeding arising
from or connected with any such matter, including any bankruptcy, receivership,
injunction or other similar proceeding, or any appeal from or petition for
review of any such matter, and with or without litigation.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
duly executed and delivered effective as of the date first above written.
BORROWER:
RESORT FUNDING, INC., a Delaware corporation
By: /S/
Its: Senior Vice President
Type/Print Name: Xxxxxx X. Xxxxxx, Xx.
LENDER:
FINOVA CAPITAL CORPORATION, a Delaware corporation
By: /s/
Its: Vice President
Type/Print Name: Xxxxx X. XxXxxxxx
LIST OF EXHIBITS
EXHIBIT "A" Form of Pledge and Assignment of Note Receivable and Applicable Mortgage
EXHIBIT "B" Form of Pledge and Assignment of Put and Reserve Agreement and
Applicable Mortgage
EXHIBIT "C" Form of Pledge and Assignment of Consumer Notes Receivable and
Interval Mortgages
EXHIBIT "D" Form of Assignment of Underlying Guarantee
EXHIBIT "E" Form of Lockbox Agreement
EXHIBIT "F" Permitted Liens and Encumbrances
EXHIBIT "G" Form of Servicing Agreement
EXHIBIT "H" Form of Advance Request
EXHIBIT "I" Currently Pending Litigation
EXHIBIT "J" Form of Borrowing Base Report
EXHIBIT "K" Exceptions to Eligible Consumer Note Receivable Standards
11728.18700.386303-8
EXHIBIT "K"
EXCEPTIONS TO ELIGIBLE CONSUMER NOTE RECEIVABLE STANDARDS
1. Definition of Pre-Sales Consumer Note Receivable. A Pre-Sales Consumer Note
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Receivable is a Consumer Note Receivable with respect to which a Purchaser may no
longer rescind the Interval sale transaction giving rising to the Consumer Note
Receivable, but also with respect to which the Applicable Underlying Developer is
not entitled to receive and retain payments because one or more of the following
conditions ("Acceptable Executory Conditions") have not been satisfied: (a)
construction of the Unit(s) from which the sold Interval(s) is/are being created
and/or other improvements have not been completed or (b) a specified number of
Interval sales and closings have not occurred.
2. Additional Conditions to the Funding of Pre-Sales Consumer Notes Receivable and
-----------------------------------------------------------------------------------
Exceptions to Standard Criteria for Eligible Consumer Notes Receivable.
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(a) Additional Conditions.
---------------------
(i) Lender may require an Applicable Borrowing Base Percentage
less than 90% with respect to Pre-Sales Consumer Notes
Receivable. The following additional conditions must be
satisfied by Borrower at its expense in order for a Pre-Sales
Consumer Note Receivable to qualify as an Eligible Note
Receivable:
(A) All payments received in respect of the Pre-Sales
Consumer Note Receivable and the Interval Mortgage
executed by the Purchaser in connection with the
Interval sale giving rise to such Pre-Sales Consumer
Note Receivable must be held in escrow ("Applicable
Pre-Sales Escrow") by an escrow agent satisfactory to
Lender ("Applicable Pre-Sales Escrow Agent).
(B) Borrower, the Applicable Underlying Developer and the
Applicable Pre-Sales Escrow Agent shall have entered
into a written agreement satisfactory to Lender
pertaining to the rights and duties of Borrower, the
Applicable Underlying Developer and the Applicable
Escrow Agent with respect to the Applicable Pre-Sales
Escrow.
11728.18700.386303-8
(C) If any of the Pre-Sales Consumer Notes Receivable held in the
Applicable Pre-Sales Escrow cannot close because there are
improvements in the Applicable Resort which have not been
completed, Lender is satisfied that adequate funds are available
to insure that final, lien free completion of such improvements
will occur and that such funds will be disbursed for such
purpose. If the source of such funds is a loan, Lender may
require that such loan be a loan which has been hypothecated to
Lender under the RFI ADC Credit Facility and is not in default.
Lender may also require that any surety bonds intended as the
assurance of such completion be in form and substance, and issued
by sureties, acceptable to it.
(b) Waived Conditions (Pre-Sales Consumer Notes Receivable). A Pre-Sales
Consumer Note Receivable shall qualify as an Eligible Consumer Note
Receivable notwithstanding the failure of the Pre-Sales Consumer
Note Receivable to meet the following criteria:
(i) closing of the Interval sale transaction giving rise to the
Pre-Sales Consumer Note Receivable and, if the Interval is an
estate in real property and the Purchaser is entitled to a
deed before payment of the purchase price in full for the
Interval, recordation of an Interval Mortgage, but only if due
solely to the Acceptable Executory Conditions not having been
satisfied and the Applicable Underlying Developer is not in
default on account of the non-satisfaction of such conditions;
(ii) access by the Purchaser to a Unit in the Applicable Resort,
but only if due solely to the Unit from which the relevant
Interval will be created not having been completed and the
date by which completion was required to have been done not
having occurred; and
(iii) lack of a claim of the Purchaser of the Interval or other
obligor under the Pre-Sales Consumer Note Receivable against
the Applicable Underlying Developer, but only so long as any
claim is an inchoate or contingent claim and would become
xxxxxx or non-contingent only if the Applicable Underlying
Developer fails to close the relevant Interval sale or fails
to complete any improvements which must be completed by the
Applicable Underlying Developer.
11728.18700.386303-8
(c) Waived Conditions (Consumer Notes Receivable which are not Pre-Sales Consumer
-----------------------------------------------------------------------------
Notes Receivable). A Consumer Note Receivable other than a Pre-Sales
------------------
Consumer Note Receivable shall qualify as an Eligible Consumer Note
Receivable notwithstanding the failure of the Consumer Note Receivable to
meet the following criteria so long as (1) closing of the Interval sale
transaction giving rise to the Consumer Note Receivable has occurred the
Purchaser is obligated to make, and the Applicable Underlying Developer is
entitled to receive and retain, all payments on the Consumer Note Receivable
and (2) Lender is satisfied that adequate funds are available to insure that
final, lien free completion of such improvements will occur and that such
funds will be disbursed for such purpose (If the source of such funds is a
loan, Lender may require that such loan be a loan which has been hypothecated
to Lender under the RFI ADC Credit Facility and is not in default. Lender
may also require that any surety bonds intended as the assurance of such
completion be in form and substance, and issue by sureties, acceptable to
it.):
(i) access by the Purchaser to a Unit in the Applicable Resort,
but only if due solely to the Unit from which the relevant
Interval will be created not having been completed and the
date by which completion was required to have been done not
having occurred; and
(ii) lack of a claim of the Purchaser of the Interval or other
obligor under the Consumer Note Receivable against the
Applicable Underlying Developer, but only so long as any claim
is an inchoate or contingent claim and would become xxxxxx or
non-contingent only if the Applicable Underlying Developer
fails to complete improvements not then completed.
