EXHIBIT 10.1
SUNTERRA CORPORATION
AND CERTAIN OF ITS SUBSIDIARIES
_________________________________________
FIRST AMENDMENT TO
FINANCING AGREEMENT
_________________________________________
Dated As Of January 3, 2002
FIRST AMENDMENT TO
FINANCING AGREEMENT
This First Amendment to Financing Agreement (this "Amendment") is entered
into as of this 3rd day of January, 2002 by and among Sunterra Corporation, as a
debtor and a debtor-in-possession, a Maryland corporation (together with its
successors and assigns, the "Company"), and the subsidiaries of the Company
listed on the signature pages hereto, each as a debtor and a debtor-in-
possession (together with the Company, the "Borrowers") or a guarantor (the
"Guarantors"), the financial institutions from time to time party hereto
(individually a "Lender" and collectively, the "Lenders") and Greenwich Capital
Markets, Inc., a Delaware corporation, as agent for the Lenders (in such
capacity, the "Agent").
Recitals
Whereas, the Borrowers, the Agent, for itself and as a Lender, have entered
into that certain Financing Agreement, dated as of April 20, 2001 (as in effect
immediately prior to giving effect to the amendment provided for by this
Agreement, the "Existing Financing Agreement" and, as amended pursuant to this
Amendment and as may be further amended, restated or otherwise modified from
time to time, the "Amended Financing Agreement");
Whereas, pursuant to Section 10.02 of the Existing Financing Agreement, the
parties hereto desire to amend the Existing Financing Agreement as more
specifically set forth herein; and
Whereas, the Existing Financing Agreement shall remain in full force and
effect except as modified herein to effectuate the purposes of this Amendment.
Now, Therefore, in consideration of the mutual benefits and promises
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each party hereto, the parties hereto
agree as follows:
1. INCORPORATION OF RECITALS.
The recitals set forth above are true, correct and accurate and are hereby
incorporated herein by this reference and made a part hereof.
2. DEFINED TERMS.
Initial capitalized terms used herein and not otherwise defined have the
meanings ascribed to such terms in the Existing Financing Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE BORROWERS.
Each Borrower represents and warrants to the Agent and the Lenders as
follows:
3.1 Organization and Existence.
Each Borrower (i) is a corporation, limited liability company or limited
partnership duly organized, validly existing and in good standing under the laws
of the state or jurisdiction of its organization, and (ii) subject to any
necessary authorization of the Bankruptcy Court, has all requisite corporate,
limited liability company or partnership, as the case may be, power and
authority to conduct its business as now conducted and as presently contemplated
and to make the borrowings under the Amended Financing Agreement, and to execute
and deliver this Amendment, and to consummate the transactions contemplated
thereby.
3.2 Amendment Authorized; Obligations Enforceable.
(a) Amendment is Legal and Authorized. The execution, delivery and
performance by each Borrower and Guarantor of this Amendment, upon entry of
the Bankruptcy Court Order approving this Amendment (the "Bankruptcy Court
Order") (and in the case of the transactions provided for in Sections
4.1(l)(ii) and 5.1 hereof, any further necessary authorization of the
Bankruptcy Court) have been duly authorized by all necessary action on the
part of the Borrowers and Guarantors.
(b) Borrowers Obligations are Enforceable. This Amendment has been
duly and validly executed and delivered by each Borrower and each of this
Amendment and the Amended Financing Agreement constitute legal, valid and
binding obligations of each Borrower and Guarantor enforceable in
accordance with the terms hereof or thereof.
3.3 No Conflicts.
The execution and delivery of this Amendment by each Borrower and
Guarantor, and fulfillment of and compliance with the terms and provisions of
the Amended Financing Agreement (i) do not and will not contravene its charter
or by-laws, its limited liability company or operating agreement or its
certificate of partnership or partnership agreement, as applicable, or any
applicable law or any contractual restriction binding on or otherwise affecting
it or any of its properties (other than conflicts, breaches and defaults the
enforcement of which is stayed by virtue of the filing of the Chapter 11 Cases),
(ii) do not and will not result in or require the creation of any Lien (other
than pursuant to any Loan Document) upon or with respect to any of its
properties, and (iii) do not and will not result in any suspension, revocation,
impairment, forfeiture or nonrenewal of any permit, license, authorization or
approval applicable to its operations or any of its properties.
3.4 Governmental Consent.
Except for the entry of the Bankruptcy Court Order (and in the case of the
transactions provided for in Sections 4.1(l)(ii) and 5.1 hereof, any further
necessary authorization of the Bankruptcy Court) and such filings as may be
required under the Exchange Act, no authorization or approval or other action
by, and no notice to or filing
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with, any Governmental Authority is required in connection with the due
execution and delivery of this Amendment or the performance by each Borrower and
Guarantor of its obligations under this Amendment.
3.5 No Defaults.
No event has occurred and no condition exists that, upon the execution and
delivery of this Amendment and the effectiveness of the Amendment, would
constitute a material Default or an Event of Default that would not be remedied
by execution of this Amendment and approval thereof pursuant to the Bankruptcy
Court Order.
4. AMENDMENT.
4.1 Amendment to Existing Financing Agreement.
Subject to paragraph 4.2 below, the Existing Financing Agreement is hereby
amended as follows:
(a) A new definition is added to Section 1.01 as follows: "Amendment
---------
No. 1" means this First Amendment to Financing Agreement dated as of
-----
January 3, 2002.
(b) The first proviso to the definition of "Collateral Value" in
Section 1.01 of the Existing Financing Agreement is hereby deleted".
(c) Clause (ii) of the definition of "Final Maturity Date" of the
Existing Financing Agreement is hereby amended by deleting "June 30, 2002"
and replacing it with "April 30, 2002.
In addition, the following provision is hereby added at the end of the
definition of the term "Final Maturity Date":
"The Final Maturity Date shall be automatically extended for sixty (60)
days (the "Extension Period") if all of the following conditions are satisfied
to Agent's sole discretion:
(i) No event has occurred and no condition exists that would
constitute a material Default or a material Event of Default
under the Amended Financing Agreement;
(ii) A Comprehensive Plan of Reorganization which provides for
repayment in full of the Obligations hereunder and under the
other Loan Documents has been confirmed by an order of the
Bankruptcy Court, subject only to closing on Borrowers' exit
financing and customary conditions of consummation under such
plan;
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(iii) The Borrowers have at least $10,000,000 of undrawn availability
under the Revolving Credit Commitment;
(iv) Sunterra shall have paid a non-refundable extension fee in the
amount of $1,250,000 to the Agent at least 10 Business Days
prior to the Final Maturity Date; provided, however that the
extension fee shall be $500,000 if the BofA Loan has previously
been paid-off or retired, and $250,000 if both the BofA Loan and
UBOC Loan have previously been paid-off or retired."
(d) Clause (i) of the definition of "Eligible Mortgage Receivables"
of the Existing Financing Agreement is hereby amended by deleting "January
1, 2001" and replacing it with "June 1, 2000."
(e) The definition of "Revolving Credit Borrowing Base" of the
Existing Financing Agreement is hereby amended by (i) deleting the amount
of "$15,000,000" and replacing it with "$25,000,000" and (ii) deleting the
following parenthetical in its entirety: "(or $20,000,000 for so long as
the Collateral Coverage Ratio exceeds 2.35:1 and the Borrowers have not
entered into cash collateral arrangements or received a cash collateral
order allowing for the Borrowers' use of cash collateral in an aggregate
amount equal to or greater than $5,000,000)."
(f) The definition of the term "Required Collateral Coverage Ratio"
in Section 1.01 of the Existing Financing Agreement is hereby amended by
deleting "The Collateral Coverage Ratio as set forth on Exhibit K
applicable to such date" and replacing it with "the ratio specified in
Section 7.02(o)."
(g) The definition of the term "Total Tranche B Term Loan
Commitment" in Section 1.01 of the Existing Financing Agreement is hereby
amended by adding at the end of such definition the words", plus the
amount of all fees payable to Lender or Agent specifically provided for
under Amendment No. 1."
(h) The definition of the term "Total Commitment" in Section 1.01 of
the Existing Financing Agreement is hereby amended by adding at the end of
such definition the words "(excluding any amount borrowed for fees payable
to Lender or Agent specifically provided for under Amendment No. 1)."
(i) Section 2.10(c) of the Existing Financing Agreement is hereby
amended by adding to the end of the first parenthetical clause therein the
following: "and excluding Permitted Cash Collateral (as defined in Section
7.02(u))."
(j) Section 2.11 (c) is deleted in its entirety and replaced with
the following: "2.11 (c) [Reserved]."
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(k) The dates in Section 2.11 (d) (ii) in the Existing Financing
Agreement are amended as follows:
(i) "March 31, 2002" is deleted and replaced with "January 31,
2002" and
(ii) "April 1, 2002" is deleted and replaced with "February 1,
2002."
(l) Add a new Section 2.11(e) to the Existing Financing Agreement as
follows:
"(e) Supplemental Fees. The Borrowers shall pay the following
supplemental fee payments to Agent (the "Supplemental Fees").
(i) An initial supplemental fee of $750,000 shall be payable to Agent
upon execution and delivery of this Amendment and court approval
of this Amendment.
(ii) A takeout supplemental fee shall be payable to Agent concurrently
with the purchase or pay-off in part or in whole of the Finova
Loans, the Bank of America loan referred to under the caption
"Secured Debt" on Schedule 1.01(D) of the Existing Financing
Agreement (the "BofA Loan") and/or the Union Bank of California
loan referred to under the caption "Secured Debt" on Schedule
1.01(D) of the Existing Financing Agreement (the "UBOC Loan" and
together with the Finova Loans and the BofA Loan, the "Secured
Loans"), in an amount equal to the Lender Percentage set forth on
Exhibit A hereto (the "Lender Percentage") multiplied by an
amount equal to the excess of (A) the aggregate unpaid principal
balance outstanding, plus accrued interest, of the Secured Loan
or portion thereof to be purchased or retired (without taking
into account any sharing, application or allocation of cash
collateral) over (B) the purchase price or payoff amount paid to
the holder of such Secured Loan; provided, however, that the
maximum aggregate fee payable to Lender under this clause (e)(ii)
in connection with the purchase or pay-off of the BofA Loan and
the UBOC Loan shall be as set forth on Exhibit A hereto."
(m) Add a new Section 2.11(f) to the Existing Financing Agreement as
follows: "(f) Portfolio Review. Borrowers hereby engage Agent to review
Borrowers' existing consumer timeshare receivables portfolio to determine
whether and on what terms a securitization of the portfolio can be
accomplished. The Agent will also assess the potential economics to
Borrowers of collapsing and reissuing Borrowers' previous on-balance sheet
and/or off-balance sheet securitizations together with the unsecuritized
portfolio. The Agent will provide to Borrowers' rating agency and bond
insurer feedback and analysis regarding the portfolio and determine
possible structures to optimize proceeds from a potential
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securitization. For its services under this clause (f), Agent shall be paid
an engagement fee of $750,000, payable upon execution and delivery of and
court approval of this Amendment."
(n) Add a new Section 2.11(g) to the Existing Financing Agreement as
follows: "(g) Exit Financing. The Agent will provide to Borrowers, on or
before February 11, 2002, a non-binding term sheet for exit financing in
connection with the consummation of a plan of reorganization, identifying
market terms and conditions for such a financing, as determined by Agent in
its sole discretion. The Agent will use its reasonable efforts to provide
the Borrowers, on or before February 15, 2002, a non-binding proposal to
provide exit financing in connection with the consummation of a plan of
reorganization in the Chapter 11 Cases on terms reasonably approximating
market terms and conditions for such a financing and for an amount
sufficient to allow Borrowers to consummate such plan and related
transactions. The Borrowers shall pay to Agent, upon presentation of both
the term sheet and the proposal, a fee of $250,000. Such proposal shall be
subject to market conditions for similar transactions of this nature,
customary material adverse change provisions, appropriate confirmatory due
diligence and approval of Agent's Credit and Commitments Committee."
(o) Add a new Section 2.11(h) to the Existing Financing Agreement as
follows: "(h) Collateral Valuation. The methodology for determining
Collateral Value with respect to unsold timeshare intervals at Villas on
the Lake, San Xxxx Bay, Embassy Lake Tahoe, Plantation at Fall Creek, Bent
Creek, Carambola and Villas de Santa Fe Resorts will be adjusted in the
reasonable discretion of the Agent to take into account certain adverse
factors affecting those properties; provided, however, the total Collateral
Value for such Resorts shall not be decreased by more than $10,665,000 from
the Collateral Value determined under the prior valuation method; further
provided however, that nothing contained in this Section 2.11(h) shall
limit the ability of the Agent to further adjust the Collateral Value of
the foregoing intervals as a result of a reappraisal conducted in
accordance with and pursuant to Section 7.01(g) hereof."
(p) Section 2.14 is deleted in its entirety and replaced with the
following: "Section 2.14 [Reserved]."
(q) Add a new Section 7.01 (ff) to the Existing Financing Agreement
as follows: "(ff) St. Maarten Liens. Sunterra shall grant to Agent and
Lenders, upon the St. Maarten Resort properties' assets (including but not
limited to, all real estate and receivables associated therewith), on or
before January 31, 2002, a valid first priority Mortgage and security
interest in such assets (subject, however, to Permitted Liens, other than
the Finova mortgage lien, the Xxxxxx mortgage lien and the St. Maarten Tax
Lien (as defined below)) and shall cause the tax lien imposed by the
government of St. Maarten (the "St. Maarten Tax Lien") to be paid off and
released from the St. Maarten Resort properties to the reasonable
satisfaction of the Agent on or before December 28, 2001."
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(r) Add a new Section 7.01 (gg) to the Existing Financing Agreement
as follows: "(gg) Exit Financing. The Borrowers shall obtain by April 30,
2002 a written commitment for exit financing from a third party, which
either (i) is subject only to completion of final documentation and
provides for closing no later than June 30, 2002 or (ii) is subject to
conditions other than or in addition to completion of final documentation
and the Agent determines in its sole discretion, following reasonable
inquiry and consultation with Borrowers, that such conditions will be
satisfied and the financing closed by June 30, 2002."
(s) Section 7.02(o) of the Existing Financing Agreement is hereby
deleted in its entirety and replaced with the following: "(o) Collateral
Coverage Ratio. Permit the Collateral Coverage Ratio (calculated excluding
any fees payable to Lender or Agent specifically provided for under
Amendment No. 1) at any time to be less than 1.60:1."
(t) Section 7.02(q) of the Existing Financing Agreement is hereby
amended by deleting the amount "$6,000,000" and replacing it with the
amount "$7,800,000."
(u) Section 7.02(r) of the Existing Financing Agreement is hereby
amended by (i) deleting "120%" and replacing it with "125%" and (ii)
adding the following sentence to the end of such Section 7.02(r): "The
three month measuring period for this subsection shall be determined as
of the last day of each calendar month, on a rolling basis, commencing with
the three month measuring period starting November, 1, 2001 and ending on
January 1, 2002."
(v) Add a new Section 7.02(u) to the Existing Financing Agreement as
follows: "(u) Cash Collateral. The Borrowers shall not enter into any
consensual or other cash collateral arrangements, agreements, applications,
or orders with respect to any cash collateral without the prior written
consent of Agent, which consent may be withheld in its sole and absolute
discretion. Notwithstanding the foregoing, Borrowers may, from time to
time, enter into such cash collateral arrangements, agreements and orders,
for up to $5,000,000 in total during the period beginning on the Amendment
No. 1 Effective Date, without the consent of Agent (but upon not less than
five (5) Business Days' advance written notice to Agent) (the "Permitted
Cash Collateral") and apply such cash collateral without restriction;
provided, however, the total Revolving Credit Commitment shall be reduced
on a dollar-for-dollar basis by the portion of the Permitted Cash
Collateral made available to or applied by or on behalf of the Borrowers."
(w) In Section 8.01 (c) delete the ratio "1.75:1" and replace it with
"1.60:1".
(x) Schedule 1.01(E) is revised as set forth in Exhibit B attached
hereto and made a part hereof.
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(y) Exhibit K to the Existing Financing Agreement is hereby deleted
in its entirety.
4.2 Effectiveness of Amendment.
The amendment of the Existing Financing Agreement contemplated by paragraph
4.1 above, shall become effective only upon the satisfaction in full of the
following conditions precedent (which date shall be referred to as the
"Amendment No. 1 Effective Date"):
(a) the Borrowers and Agent shall have executed and delivered a
counterpart of this Amendment;
(b) the representations and warranties set forth in Section 3 above
shall be true and correct as of the Amendment No. 1 Effective Date;
(c) the Bankruptcy Court Order shall have been entered; and
(d) Borrowers shall have reached a written agreement with Finova
Capital Corporation for the purchase or retirement of the Finova Loans for
a maximum amount not to exceed the amount set forth on Exhibit A attached
hereto and made a part hereof.
5. MISCELLANEOUS.
5.1 BofA Loan and UBOC Loan.
Borrowers and Agent will cooperate in pursuing the pay-off and retirement
of the BofA Loan and UBOC Loan as soon as reasonably practicable following the
Amendment No. 1 Effective Date. Borrowers covenant and agree not to purchase,
retire or payoff the BofA Loan or the UBOC Loan or enter into any other
agreement relating to the purchase, retirement or payoff of such loans without
the Agents consultation and consent, such consent not to be unreasonably
withheld.
5.2 Part of Existing Financing Agreement, Future References, etc.
Except as expressly amended by this Amendment, all terms, conditions and
covenants contained in the Existing Financing Agreement and the other Loan
Documents are hereby ratified and shall be and remain in full force and effect.
Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Amendment may refer to the
Existing Financing Agreement without making specific reference to this
Amendment, but nevertheless all such references shall include this Amendment
unless the context otherwise requires.
5.3 Counterparts; Effectiveness.
This Amendment may be executed in any number of counterparts, each of which
shall be an original but all of which together shall constitute one instrument.
Delivery of
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an executed signature page by facsimile transmission shall be effective as
delivery of a manually signed counterpart of this Amendment.
5.4 Successors and Assigns.
This Amendment, the Existing Financing Agreement and the Loan Documents
shall be binding upon and inure to the benefit of the Borrowers and the other
Loan Parties and the Agent and each Lender and their respective successors and
assigns (including, except for the right to request Loans, any trustee
succeeding to the rights of the Borrowers pursuant to Chapter 11 of the
Bankruptcy Code or pursuant to any conversion to a case under Chapter 7 of the
Bankruptcy Code); provided, however, that each of the Borrowers and the other
Loan Parties may not assign or transfer any of their rights hereunder, or under
the Existing Financing Agreement and the Loan Documents, without the prior
written consent of each Lender and any such assignment without the Lenders'
prior written consent shall be null and void.
5.5 Governing Law.
THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED
IN STATE OF NEW YORK EXCEPT AS GOVERNED BY THE BANKRUPTCY CODE.
5.6 Release of Agent and Lender.
Except for the covenants and obligations of Agent and Lender under this
Amendment, the Existing Financing Agreement and the other Loan Documents, the
Borrowers and Guarantors, for themselves and their successors and assigns,
hereby unconditional waive and release Agent and Lender from any and all causes
of action, suits, damages, injuries, claims, liabilities and demands whatsoever,
which they may have against Agent and Lender, known or unknown, from the
beginning of the world to the date hereof, and, particularly, but not by way of
limitation, all lawsuits, damages, injuries, claims, demands and liabilities
arising out of or related to the Existing Financing Agreement, the Loan
Documents and this Amendment, including, but not limited to, their negotiation,
execution, enforcement and any other matters related thereto.
[Remainder of page intentionally left blank. Next page is signature page.]
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BORROWERS:
---------
SUNTERRA CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President and Chief Financial Officer
AKGI LAKE TAHOE INVESTMENTS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
AKGI ST. MAARTEN, N.V.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ALL SEASONS PROPERTIES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ALL SEASONS REALTY, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ALL SEASONS RESORTS, INC. (AZ)
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ALL SEASONS RESORTS, INC. (TX)
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ARGOSY GRAND BEACH, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ARGOSY HILTON HEAD, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ARGOSY PARTNERS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ARGOSY/KGI GRAND BEACH
INVESTMENT PARTNERSHIP
By: Argosy Grand Beach, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Argosy Partners, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: KGI Grand Beach, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
ARGOSY/KGI PORT ROYAL PARTNERS
By: Argosy Hilton Head, Inc.
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: KGI Port Royal, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
AVCOM INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
DESIGN INTERNATIONALE-RMI, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
GRAND BEACH PARTNERS, LP
By: Argosy/KGI Grand Beach Investment
Partnership, its General Partner
By: Argosy Partners, Inc.,
its General partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Argosy Grand Beach, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: KGI Grand Beach Investments,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
GRAND BEACH RESORT, LIMITED PARTNERSHIP
By: Grand Beach Partners, LP,
its General Partner
By: Argosy/KGI Grand Beach Investment
Partnership, its General Partner
By: KGI Grand Beach Investments, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Argosy Partners, Inc.,
Its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Argosy Grand Beach, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
GREENSPRINGS ASSOCIATES
By: Plantation Resorts Group, Inc.,
its Joint Venturer
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Greensprings Plantation Resorts, Inc.,
its Joint Venturer
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
GREENSPRINGS PLANTATION RESORTS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
XXXXXX TAHOE DEVELOPMENT
By: Lakewood Development, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Ridgewood Development, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
KGI GRAND BEACH INVESTMENTS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
KGI PORT ROYAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
KGK LAKE TAHOE DEVELOPMENT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
LAKE TAHOE RESORT PARTNERS, LLC
By: AKGI Lake Tahoe Investments, Inc.,
its Managing Member
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: KGK Lake Tahoe Development, Inc.,
its Member
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
LAKEWOOD DEVELOPMENT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
MMG DEVELOPMENT CORP.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
PLANTATION RESORTS GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
POINTE PARTNERS, LIMITED PARTNERSHIP
By: Xxxxxx Tahoe Developments,
its Managing General Partner
By: Lakewood Development, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Ridgewood Development, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
PORT ROYAL RESORT LP
By: Argosy/KGI Port Royal Partners,
its General Partner
By: KGI Port Royal, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Argosy Hilton Head, Inc.
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
POWHATAN ASSOCIATES
By: Plantation Resorts Group, Inc.,
its Joint Venturer
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Williamsburg Vacations, Inc.,
its Joint Venturer
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
PREMIER VACATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
RESORT CONNECTIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
RESORT MARKETING INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
RESORTS DEVELOPMENT INTERNATIONAL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
RIDGE POINTE LIMITED PARTNERSHIP
By: Pointe Partners, Limited Partnership,
its Managing General Partner
By: Xxxxxx Tahoe Developments,
its Managing General Partner
By: Lakewood Development, Inc.,
its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------
Xxxxxxxx X. Xxxxx
Vice President
By: Ridgewood Development, Inc.,
its General Partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------
Xxxxxxxx X. Xxxxx
Vice President
RIDGEWOOD DEVELOPMENT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
RKG, CORP.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUNTERRA FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUNTERRA ST. CROIX, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
WILLIAMSBURG VACATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
GUARANTORS:
----------
CLUB SUNTERRA, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
INTERNATIONAL TIMESHARES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUNTERRA TRAVEL, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUNTERRA COMMUNICATIONS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice President
KABUSHIKI GAISHA KEI LLC
By: KGK INVESTORS, INC,
Its: Member
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx
Its: Vice President
By: KGK PARTNERS, INC.,
Its Member
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx
Its: Vice President
MARC HOTEL AND RESORTS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx
Vice President
RPM MANAGEMENT, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx
Vice President
SUNTERRA PACIFIC, INC.
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------
Xxxxxxxx X. Xxxxx
Vice President
XXXXXX ACQUISITION SUBSIDIARY, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Vice President
S.V.L.H., INC.
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Xxxxxxxx X. Xxxxx
Vice President
AGENT AND LENDER:
----------------
GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------
Title: Vice President
--------------------------
Exhibit A
Purchase and/or Pay-off of Secured Loans
Lenders Percentage: 50%
Maximum amount for retirement of Finova Loans: $105 million, less the aggregate
of all cash collateral amounts released to Finova.
Maximum aggregate fee payable to Lender in connection with purchase or pay-off
of Bank of America Loan: $5 million.
Maximum aggregate fee payable to Lender in connection with purchase or pay-off
of Union Bank of California Loan: $1.25 million.
Exhibit B
Revised Schedule 1.01(E) - Lender's and Lenders' Commitments
Revolver:
(A) the total Revolving Credit Commitment shall be: (i) prior to the
Finova Take-out Date, $35,000,000; (ii) after the Finova Take-out Date and prior
to purchase or pay-off of both the BofA Loan and UBOC Loan, $45,000,000
(provided, however, in the event that the Borrowers have a Comprehensive Plan of
Reorganization which provides for repayment in full of the Obligations hereunder
and under the other Loan Documents which has been confirmed by an order of the
Bankruptcy Court, subject only to closing on Borrowers' exit financing and
customary conditions of consummation under such plan, then the total Revolving
Credit Commitment shall be $50,000,000); (iii) after the purchase or pay-off of
the BofA Loan, $65,000,000; and (iv) after the purchase or payoff of both the
BofA Loan and the UBOC Loan, $75,000,000.
(B) The total Revolving Credit Commitment determined in paragraph (A)
above shall be increased by the Available Disposition Proceeds (as defined
below), subject to the terms below.
(i) Available Disposition Proceeds shall be determined as follows:
(a) Agent shall determine the amount received by the Lenders
under Section 2.09(b)(ii) of the Amended Financing Agreement, during the
period, commencing on the Amendment No. 1 Effective Date and expiring on
the March 2002 Remittance Date, up to $5,000,000 (the "Maximum Disposition
Proceeds").
(b) Agent shall determine the existing availability under the
Revolving Credit Commitment as of the March 2002 Remittance Date (prior to
any advances under the Revolving Loan on the March 2002 Remittance Date)
(the "March 2002 Revolving Credit Availability").
(c) The "Available Disposition Proceeds" shall be equal to the
product of the Maximum Disposition Proceeds multiplied by the Available
Percentage (as determined below):
March, 2002 Revolving Credit Availability Available Percentage
----------------------------------------- --------------------
Less than $5,000,000 100%
$5,000,000 to $5,999,999.99 80%
$6,000,000 to $6,999,999.99 60%
$7,000,000 to $7,999,999.99 40%
$8,000,000 to $8,999,999.99 20%
$9,000,000 or More 0%
(ii) The Revolving Credit Borrowing Base shall be increased by the
Available Disposition Proceeds.
(iii) All advances of Revolving Loans, including those hereunder, are
subject to all requirements for advances of Revolving Loans under the Amended
Financing Agreement.
(iv) In no event shall the total Revolving Credit Commitment ever exceed
$75,000,000.
