Agreement Modifying the Irrevocable Trust Contract in Guarantee and Source of
Payment Number F626-99-5, entered into between:
i) C.R.Resorts Puerto Vallarta, S. de ▇.▇. de C.V., C.R.Resorts Cancun. S. de
▇.▇. de C.V. and S.R. Resorts los Cabos, S. de ▇.▇. de C.V. (hereinafter
jointly denominated the "Fiduciary Trustees,". all of which are represented
by ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇.
ii) BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero BBVA
Bancomer (hereinafter denominated "Bancomer" or the "Fiduciary Trustee in
the First Place represented by Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Viezca
and ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierry; and
iii) Fianzas Monterrey, S.A. (hereinafter denominated the "Fiduciary")
represented by the Fiduciary Delegate, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇;
iv) With the appearance of C.R. Resorts Capital ▇.▇▇ ▇.▇. de C.V. (hereinafter
denominated the "Accredited"); Corporacion Mexitur, S. De ▇.▇. de C.V.
(hereinafter denominated "Mexitur", Club ▇▇▇▇▇▇, ▇.▇.▇▇ C.V. (hereinafter
denominated "▇▇▇▇▇▇" and DesarrolloTuristicos ▇▇▇▇▇▇ ▇. De ▇.▇. de C.V.
(hereinafter denominated "DTR"), all of which are represented by ▇▇.▇▇▇▇▇▇▇
▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
In accordance with the following antecedents, declarations and clauses.
A N T E C E D E N T S
1. On November 26, 1999, the Accredited, with the appearance of the Founders of
the Trust, Mexitur, ▇▇▇▇▇▇ and other entities, entered into a contract to
open a simple credit, with Bancomer, with a fiduciary guarantee (hereinafter
including its modifications, denominatedThe "First Credit") for an amount in
Investment Units equal to U.S. $7,000,000.00 (Seven million dollars, 00/100
currency of the United States, which amount was destined to the payment of
interests and taxes for retentions from the holders of bonds and warrans
issue by the Accredited and Raintree Resorts International in the
international markets. This First Credit has been modified by means of
modifying agreements dated August 18, 2000 and Decmber 15, 2000. On the date
of the present agreement, the Accredited owes Bancomer the amount of UDIS
5'861,108.70 correponding to the principal amount derived from the First
Credit.
2 On November 26, 1999 the parties hereunder subscribed an irrevocable trust
contract in guarantee and source of payment (hereinafter with its
modifications, denominated the "Trust") whose main object is to act as
instrument for the payment and in guarantee of the First Credit, for which
the Fiduciary Trustees have transmitted to the Fiduciary, among other
assets, the Portfolio and the Collection Rights derived from the sale of
Memberships for vacational periods in time share in the Founder of the
Trust's facilities. The said Trust has been modified by means of an
agreement dated December 15, 2000.
3 On the same date, the Accredited, with the appearance of the Fiduciary
Trustees and other parties, have entered into a contract with Bancomer to
open a simple credit in dollars (hereinafter denominated the "Second
Credit") for the principal amount of $800,000.00 (Eight hundred thousand
dollars 00/100) United States currency, which shall be destined to the
payment of liabilities to the holders of bonds and warrants issued by the
Accredited and Raintree Resorts International in the international markets.
4 The parties hereunder agree that the Trust must be modified so that, aside
from being an instrument of payment and guarantee for the First Credit, it
may be an instrument of payment for the Second Credit.
D E C L A R A T I O N S
1. The Founders of the Trust declare, through their representative:
a) C.R. Resorts Puerto Vallarta, S. de ▇.▇. de C.V. is a mercantile
company, duly constituted and existing in accordance with Mexican
laws, with the capacity to enter into the present modifying agreement,
and to become obligated under the terms hereunder. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Ripol ▇▇▇▇▇▇▇▇ has the corresponding faculties to represent the
company in this act with faculties that to date have not been modified
or restricted in any way.
b) C.R.Resorts Cancun, S. de ▇.▇. de C.V. is a mercantile company, duly
constituted and existing in accordance with Mexican laws, with
capacity to enter into the present modifying agreement, and to become
obligated under the terms hereunder. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
has the corresponding faculties to represent the company in this act,
with faculties that to date have not been modified or restricted in
any way.
c) C.R. Resorts los Cabos S. de ▇.▇. de C.V. is a mercantile company,
duly constituted and existing in accordance with Mexican laws,with
capacity to enter into the present modifying agreement and to become
obligated under the terms hereunder. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
has the corresponding faculties to represent the company in this act,
with faculties that to date have not been modified or restricted in
any way.
2. Bancomer declares, through its representatives.
a) BBVA Bancomer, S.A. Institucion de Banca Multiple, Grupo Financiero
BBVA. Bancomer is a mercantile company duly constituted and existing
in accordance with Mexican laws, with capacity to enter into the
present modifying agreement. Messrs. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Viezca
and ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierre have the faculties to represent the
company in this act, with faculties that to date have not been
modified or restricted in any way.
3. The Accredited, Mexitur, ▇▇▇▇▇▇, and DTR declare through their
representative:
a) C.R. Resorts Capital, S. de ▇.▇. de C.V. is a mercantile company, duly
constituted and existing in accordance with Mexican laws, with
capacity to enter into the present modifying agreement and to become
obligated under the terms hereunder. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
has the corresponding faculties to represent the company in this act,
with faculties that to date have not been modified or restricted in
any way.
b) Corporacion Mexitur, S. de ▇.▇. de C.V. is a mercantile company, duly
constituted and existing in accordance with Mexican laws, with
capacity to enter into the present modifying agreement and to become
obligated under the terms hereunder. ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has the
corresponding faculties to represent the company in this act, with
faculties that to date have not been modified or restricted in any
way.
c) Club ▇▇▇▇▇▇, S.A. de C.V. is a mercantile company, duly constituted
and existing in accordance with Mexican laws, with capacity to enter
into the present modifying agreement and to become obligated under the
terms hereunder. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ has the corresponding
faculties to represent the company in this act, with faculties that to
date have not been modified or restricted in any way.
d) Desarrollos Turisticos ▇▇▇▇▇▇, S. de ▇.▇. de C.V. is a mercantile
company, duly constituted and existing in accordance with Mexican
laws, with capacity to enter into the present modifying agreement and
to become obligated under the terms hereunder. ▇▇.▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇.has the corresponding faculties to represent the company in
this act, with faculties that to date have not been modified or
restricted in any way.
4. The Fiduciary, through its Fiduciary Delegate, declares:
a) Fianzas Monterrey, S.A. is a mercantile company, duly constituted and
existing in accordance with Mexican laws, authorized as a bonding
institution by the Ministry of Treasury and Public Credit, with the
capacity to enter into the present modifying agreement, as Fiduciary
for theTrust and to become obligated under the terms hereunder. ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in his capacity as fiduciary delegate, has the
corresponding faculties to represent the company in this act, with
faculties that to date have not been modified or restricted in any
way.
b) He agrees to continue acting as fiduciary in the Trust registered in
their fiduciary division number F626-99-5, which is modified through
the present agreement.
After declaring the above, the parties grant the following
C L A U S E S
First- C.R. Resorts Puerto Vallarta, S. de ▇.▇. de C.V., C.R. Resorts Cancun,
S. de ▇.▇. de C.V., and C.R. Resorts los Cabos, S. de ▇.▇. de C.V., in
their capacity as Founders of the Trust and Fideicommissaries in Second
Place, BBVA Bancomer, S.A., Institucion de Banca Multiple, Grupo Financiero
BBVA Bancomer, in their capacity as Fideicommissary in the First Place, and
Fianzas Monterrey, S.A. in its capacity as Fiduciary, with the appearance
of C.R. Resorts Capital, S. de ▇.▇. de C.V., Corporacion Mexitur, S. de
▇.▇. de C.V., Club ▇▇▇▇▇▇, S.A. de C.V. and Desarrollos Turisticos ▇▇▇▇▇▇,
S. de ▇.▇. de C.V. hereby agree to modify the Section of Definitions, as
well as Clauses Third, Fourth, Ninth and Tenth in the Irrevocable Trust
Contract in Guarantee and Source of Payment number F626-99-5, to be drawn
up under the terms specified as follows:
"DEFINITIONS
A) Each and every one of the definitions included in the First Credit and
in the Second Credit shall have, when used in the present Trust with
the first capital letter, or with a Compact capital letter, the same
meaning assigned therein, unless they are defined otherwise in this
document.
B) The following definitions are privative of the present Trust.
"Appraisal" (Aforo) has the meaning, both in respect of the First
Credit and the Second Credit, the Portfolio derived from the sale of
Memberships, that has affected the patrimony of the present Trust,
whose value is equal to 3 (three) times of unpaid balance of the ▇▇▇▇▇
Credit and of the Second Credit. For the effects of the above,
Bancomer and the Founders of the Trust modify the terms of the
Appraisal established in Clause Eighteenth (III) (C) (1) in the
respective contract for the First Credit.
"Portfolio" means the present and future collection rights,
denominated in Investment Units that the Founders of the Trust have
before physical or moral parties acquiring Memberships, as far as may
correspond to them in fact and by right, including their accessory
rights that may affect this Trust in the amounts provided in this
contract.
"Total Portfolio" means the collection rights in Investment Units, and
the cash received as the product of this collection, derived from the
Purchase-and-Sale contracts entered into or assumed by the Founders of
the Trust with the purchasers of such Memberships, as well as the
Promissory Notes of the Portfolio documenting these, as far as may
correspond to them in fact and by right, in the understanding that
this concept includes, without limitation, all the funds derived from
the payment of Memberships, both those made in cash through a single
exhibition, and the initial payments and monthly periodical
amortizations, anticipated amortizations, ordinary interest and
moratory interest.
"Collection of Portfolio" means both (i) the Collection Rights with
respect to the amortization of the Portfolio, in accordance with the
mercantile commission contract entered into between the Founders of
the Trust and Mexitur, or the mercantile commission contract that
might be entered into for the same effect, with another moral party,
(ii) as well as the product of the said present or future collections.
"Collection of Fees" means, both (i) the collection rights with
respect to Maintenance Fees, and (ii) the product of the said present
and future collection rights.
"Purchase-and-Sale-Contracts" means the purchase-and-sale contracts of
Memberships, of which the Founders of the Trust may be title holders,
additionally documented by means of Promissory Notes for the
Portfolio, whose Collection Rights pertain to the Portfolio.
"Credit" means the First Credit and the Second Credit jointly, as well
as any other credit that may be granted by Bancomer to the Accredited,
and which, its case, the parties agree shall be paid with the flows
derived from the product of the Portfolio
"Capturing Accounts" mean the checking accounts without a checkbook,
opened by the Fiduciary, wherein the amounts produced by the Portfolio
for the creation of the Maintenance Fund and the Payment Fund are
deposited.
"Maintenance Fees mean the fees that the purchasers of Memberships
must pay to the Founders of Trusts 1, 2 and 3 as the case may be, and
with which Starwood shall be paid for maintenance services in the
Founders of the Trusts' installations, and to Mexitur for reservation
services and replacements.
"Collection Rights mean the collection rights of the liquid and
demandable amounts of money derived from the Purchase-and-Sale
Contracts forming the Portfolio.
"Maintenance Fund" This has the meaning attributed to this term in
Clause Fourth, paragraph 4.3, sub-paragrph (v) in this Trust .
"Payment Fund" This has the meaning attributed to this term in Clause
Fourth, paragraph 4.3, sub-paragraph (iii) in this Trust.
"Founders of the Trust" joinrly mean C.R. Resorts Puerto Vallarta, S.
de ▇.▇. de C.V., C.R.Resorts Cancun, S. de ▇.▇. de C.V., and C.R.
Resorts los Cabos, S. de ▇.▇. de C.V., Mercantile companies duly
constituted and existing in accordance with Mexican laws.
"Trust" means the trust constituted by means of the contract
hereunder.
"Guarantee" means only in respect of the First Credit, the Portfolio,
the Promissory Notes in respect of the Portfolio, and the Collection
of the Portfolio which may be contributed in its moment, in order to
maintain the appraisal under the terms of this contract.
"Memberships" means the vacational periods in time-share corresponding
only to the use of vacational units in the Founders of theTrust's
facilities, which are derived both from the purchase of Regina's
Series "B" shares , as well as from the Purchase-and-Sale Contracts
entered into with any one of the Founders of the Trust and forming the
Portfolio.
"Promissory Note for Portfolio" means the promissory notes that the
buyers of Member-ships in installments subscribe in favor of the
Founders of the Trust in order to document additionally the respective
debts derived from the Purchase-and-Sale Contracts, and which the
Founders of the Trust shall deliver to the Fiduciary in order to
affect these to the present Trust.
"First Credit" means the simple credit with a fiduciary guarantee for
an amount in Invesment Units equal to U.S. $7,000,000.00 (Seven
million dollars 00/100) United States currency, including the
modifications and additions granted on November 26, 1999 by Bancomer
to the Accredited, with the appearance of the Founders of the Trust,
Mexitur, ▇▇▇▇▇▇ and other parties.
"Second Credit" means the simple credit in dollars, for a principal
amount of $800,000.00 (Eight hundred thousand dollars 00/100 United
States currency , granted by Bancomer on the 14th day of June, 2001 to
the Accredited, with the appearance of the Founders of the Trust and
other parties.
"Third - Patrimony" The patrimony of the present Trust is formed by the
following:
3.1 By the present and future Portfolio which the Founders of the Trust
may generate due to the signing of the Purchase-and-Sale Contracts
that are required to maintain the Appraisal, both in respect of the
First Credit and of the Second Credit, as indicated in the respective
Credit Contracts.
3.2 With the product obtained from the Collection of the Portfolio and the
Collection of the Collection Fees with respect to Memberships, and in
its case, also with the product obtained due to the execution of the
Guarantee under the terms of the Trust hereunder.
3.3 The present and future Collection Rights of the Portfolio, documented
with the Purchase and Sale Contracts and with the Promissory Notes of
the Portfolio, as far as this may correspond to them in fact and by
right, including their accessory rights as well as the products of all
the relative collections.
3.4 The Collection Rights for the present and future Maintenance Fees, as
well as the funds received or should be received for these concepts.
3.5 The Capturing Accounts which the Fiduciary may open in order to
receive the Collection of the Portfolio and of the Maintenance Fees.
3.6 The insurance policies that have been contracted with the Founders of
the Trust and the amounts they must cover to the corresponding
insurance company or Companies in case a loss should occur which is
covered by these insurances.
3.7 Any other income which for any reason may be affected for the
fulfillment of the purposes of his Trust.
"Fourth - The purposes of thisTrust are the following":
4.1 That the Fiduciary may have the title of the patrimony under trust,as
long as the total amount has not been paid of the principal,interest,
commisions and other amounts owed to Bancomer, derived from the First
Credit, as well as the amounts derived from the Second Credit.
4.2 That the Fiduciary fulfill the following stipulations relative to the
Mechanics for Payments:
(i) To receive, through Mexitur or whomsoever may substitute it, the
income obtained from the Collection of the Portfolio, including
interest. With the resources obtained from the collection of the
said Portfolio, it shall form the Payment Fund referred to in
paragraph (iii) following. Furthermore, it shall receive through
Mexitur or from whomsoever may substitute the latter, 100% of the
income provided from the payment of Maintenance Fees in order to
ensure the payment of maintenance services, reservations and
replacements of equipment loaned by Starwood and Mexitur with
respect to the real estate occupied by the Founders of the Trust,
in order to form the Maintenance Fund as described in paragraph
(V) below.
(ii) To invest the cash which it must retain in low-risk instruments,
or in those instructed by the Trust's Technical Committee, and
which shall form part of the Patrimony of the Trust itself.
(iii)To integrate monthly a Payment Fund (the "Payment Fund")
destined to the payment of the principal amount and interests of
the First Credit, and of the Second Credit, under the terms and
conditions of the corresponding credit contracts. The Payment
Fund shall at all times be equal to the principal amount and
interests to be paid in full upon the immediate maturity, both of
the First Credit and of the Second Credit, and it shall be formed
with the monthly income arising from the collection of capital
and interests of the Portfolio, including anticipated payments or
"Cash Outs". This Payment Fund must be formed no later than on
the 20th day of each month, and in the event this is not a
working day, then the date shall be on the immediately prior
working day. If necessary, the Fiduciary shall carry out the
exchange operations to foreigh currency that may be necessary. In
case of the contrary, the Founders of the Trust shall contribute
the necessary resources to constitute the said Payment Fund no
later than on the following working day, and these funds shall be
deposited in the Fiduciary's account so that it may be able to
carry out the corresponding payment to Bancomer on the following
date of Payment of Principal and interests, both for the First
Credit and for the Second Credit. The above is with no liability
for the Fiduciary in the event that the said Fund cannot be
constituted, and in the understanding that Bancomer must inform
the Fiduciary, the amount it must retain for this concept, at
least one month immediately prior to the date of the following
amortization of the First Credit and of the Second Credit.
(iv) Mexitur shall deposit the product of the Collection of the
Portolio in a Capturing Account. The Fiduciary shall daily
withdraw the existing resources to invest these under the terms
of paragraph (ii) above, until constituting the Payment Fund. The
exceeding resources shall be delivered by the Fiduciary to
Mexitur, unless the Accredited is in default of the First Credit
or of the Second Credit. In which case the Fiduciary shall
deliver to Bancomer all the amounts received or which it may have
received.
(v) To maintain at all times a Fund denominated "Maintenance Fund",
equal to or more than U.S. $500,000.00 (Five hundred thousand
00/100) or its equivalent in pesos, as may be instructed by the
Technical Committee, in the account that the Fiduciary may
decide. This is for the purpose of guaranteeing that at all times
at least the said amount exists to pay Starwood and Mexitur for
maintenance, reservations and replacements in the event that the
Founders of the Trust should default in their respective payment
obligations.
(vi) As long as the Maintenance Fund is formed, and no instructions
exist from Bancomer under the terms provided in Clause Nineth,
paragrpah 9.3 in this document, the Fiduciary shall return the
product obtained from the Collection of Fees in excess of the
Maintenance Fund no later than on the following working day to
Mexitur, or whomsoever may substitute the latter. Likewise, it
shall send to Mexitur or whomsoever may substitute the latter,
the product derived from the Investment of the Maintenance Fund
on the last day of the month.
(vii)In the event that the Founders of the Trust should default in the
payment of maintenance, the Fiduciary, with the previous
instructions from Bancomer, shall make the payment to Starwood
and to Mexitur for maintenance, reservations and replacement of
equipment, or to whomsoever may substitute the latter with the
resources from the Maintenace Fund. At the same time, the
Fiduciary shall request the Founders of the Trust, the
reconstitution of the Maintenance Fund within a period not to
exceed 10 natural days after the advise.
(viii) In the event that the Founders of the Trust fail to constitute
the said Maintenance Fund as herein provided, the Fiduciary shall
use resources from the Collection of the Portfolio to
reconstitute the Maintenace Fund. When resources are received for
the concept of Fees and/or by the Founders of theTrust, which are
sufficient to reconstitute the Maintenance Fund, the Fiduciary
shall return to the Payment Fuind the resources taken, including
the interest earned.
(iv) Supervise that the Founders of the trust deliver to the Fiduciary
copy of the invoices issued by Starwood and Mexitur, within two
working days after the aforementioned companies issue these
invoices covering maintenance services.
4.4 That the Fiduciary maintain the Portfolio's Promissory Notes affected
in fiduciary property, both those which are contributed initially, as
well as those which are later placed in trust, in addition to or in
substitution of those which are existing, in order to conserve the
value of the Appraisal, to comply with the provisions contained in
this Trust, in the First Credit and in the Second Credit, releasing,
in its case, the Portfolio's Promissory Notes exceeding the value of
the said Appraisal.
4.5 That the Fiduciary, through Mexitur or whomsoever may substitute the
latter, collect, receive, and maintain the funds corresponding to the
Portfolio, including anticipated payments commonly denominated "Cash
Outs" as well as the interest earned by the Portfolio and the total
amount of Maintenance Fees.
4.6 That the Fiduciary apply monthly the product of the Collection of the
Portfolio, plus the interest generated by its investment, to the
constitution or the reconstitution of the Payment Fund, releasing the
Founders of the Trust from the excess, under the terms established in
paragraph 4.3 above, in the understanding that from the moment when
the Fiduciary receives instructions from Bancomer, stating that a
default has occured to the terms of the First Credit or Second Credit,
the Fiduciary shall deliver to Bancomer the total of the amounts
received, to be applied to the anticipated payment of the First Credit
and of the Second Credit respectively, as far as it can be possible.
4.7 That the Fiduciary, as long as it does not receive instructions to the
contrary from Bancomer, delivers to Mexitur or whomsoever is
substitutint the latter, the amounts received for Maintenance Fees,
except the part corresponding to the Maintenance Fund mentioned in
paragraph 4.3 (v) above, in order to cover the total amounts payable
for the said concepts, to the parties providing the respective
services.
4.8 That the Fiduciary, as from the date in which it receives instructions
from Bancomer indicating that a default has occurred to any of the
terms and conditions provided in the First Credit or in the Second
Credit, delivers to Bancomer each and every one of the amounts it
maintains, and is receiving as Collection of the Portfolio, or any
other, to be applied to the payment of the First Credit and the Second
Credit under the terms determined by Bancomer, and to apply the
corresponding amounts to Maintenance Fees for the payment of expenses
and fees for the maintenance herein provided, including specifically
the payments to Starwood and Mexitur.
4.9 That the Fiduciary deliver to Bancomer the amounts corresponding to
the Payment of capital and/or interest for the First Credit or for the
Second Credit, for the corresponding period, taking these amounts from
the Payment Fund, as far as may be possible.
4.10 That the Fiduciary receive from the Founders of the Trust, the
appropriation of the additional Portfolio that is required, in order
to maintain the Appraisal within the trust's patrimony: when the said
Portfolio is partially or totally amortized by the buyers of
Memberships and the respective amounts have been delivered to any one
of the Founders of the Trust; (ii) when the Portfolio should be
substituted by the Founders of the Trust when they do not meet the
requirements established in Clause Fifth of this contract; or (iii)
when any of the Portfolio's Promissory Notes documenting the Portfolio
remain in default, overdue during more than 90 days or is considered
incollectible under the terms of the Law. The Founders of the Trust
shall carry out the appropriation of the additional Portfolio in the
cases provided in this paragraph, within the 7 (seven) bank working
days to the date in which the Fiduciary requires the written
appropriation of the additional Portfolio. In case it is not carried
out in this way, this fact shall be a Case of Anticipated Maturity of
the First Credit and of the Second Credit.
4.11 That the Fiduciary, with the instructions from the Founders of the
Trust, negotiates, discounts, endorses, cedes or transfers under any
other way, in favor the the Founders of the Trust themselves, the
total or part of the Portfolio's Promissory Notes, providing that (i)
the Founders of the Trust previously substitute the titles which in
their total are for the amounts required to satisfy the Appraisals,
and (ii) the requirements provided in Clause Fifth of this Contract
are fulfilled.
4.12 In the event of the Accredited's default, or of any of the Founders of
theTrust to any of its obligations in accordance with the First
Credit, in accordance with Bancomer's instructions in this respect, it
proceeds to alienate the Portfolio in accordance with the execution
proceeding established in Clause Ninth hereunder, and delivers the
product of the said alienation to Bancomer in payment of the Second
Credit, and the remainder, if any, be placed at the disposal of the
Founders of the Trust to be distributed among them as the Founders of
the Trust themselves may indicate.
4.13 That the Fiduciary proceed to execute a mercantile commission contract
with Mexitur under the terms of Clause Tenth hereunder, to carry out
the Collection of the Portfolio and the collection of the Maintenance
Fees, and in the event that Mexitur should default in its obligations,
in accordance with instructions from Bancomer, it shall proceed to
hire a specialized office or a financial factorage institution who
provides collection services, under the terms indicated below,
increasing the Trust's patrimony with this Collection for all the
other effects established in this contract.
4.14 That the Fiduciary collect the amounts paid by the Insurers for
indemities due to losses, and apply these amounts under the terms of
Clause Sixteenth (E) in the contract covering the First Credit.
4.15 That once Bancomer extends the letter of settlement, evidencing that
the obligations derived from the Documents covering the First Credit
and the Documents covering the Second Credit have been fulfilled by
the Accredited, the Fiduciary shall then proceed to revert the
patrimony under Trust to the Founders of the Trust.
"Ninth - The Conventional Execution Proceeding." The parties participating In
this contract, based on article 83 of the Law for Credit Institutions in
effect, and applicable in a supplementary way, and in the understanding
that the Supreme Court of Justice of the Nation, in repeated writs of
execution has declared that the execution proceeding is constitutional,
such as agreed in this contract, and warned about the reach and legal
consequences, instruct the Fiduciary irrevocably, and the Fiduciary assumes
the respective obligation to do, so that assuming that it must carry out
the alienation of the Portfolio with respect to the First Credit, in the
event that a Case of Anticipated Maturity of the First Credit should exist,
and this is not remedied or paid by the Accredited or by any of the
Founders of the Trust, it shall proceed in accordance with the following
terms:
9.1 Bancomer shall communicate in writing with the Fiduciary, stating that
the Founders of the Trust have not fulfilled the obligations of payment
derived from the Documents covering the First Credit, requesting the
beginning of the conventional execution proceeding herein agreed upon,
for which, within the same communication, it shall include a statement
of account, certified by Bancomer's executive having faculties to do
so, showing the obligations in default.
9.2 As soon as the Fiduciary receives the communication referred to in the
foregoing pargraph, it shall notify the above to the Accredited and to
the Founders of the Trust, to the Commissioner and the Depository,
through a Public Notary or Broker, at the addresses set forth in this
contract, and granting them a period of One Working Day, in case of
failing to pay the principal, interests or accessories of the Credit,
and Seven Working Days in other cases, in both instances as from the
date of the latest notification mentioned, so that (i) they can
demonstrate in an authentic way, the fulfillment of the obligations in
default of the First Credit imputed by Bancomer; or, in its case, (ii)
to fulfill the outstanding obligations demanded by Bancomer.
9.3 After the period indicated in the foregoing paragraph has elapsed, and
the Accredited or the Founders of the Trust have not demonstrated to
the Fiduciary the fulfillment and payment of the obligations of the
First Credit, the Fiduciary (i) shall suspend any release of funds or
collection rights; (ii) it shall require from the Depository and the
Commissioner, through a Public Notary or Broker which it may select, so
that within a period of three Working Days, counting as from the date
of the said requirement, it may carry out the physical delivery of the
Portfolio's Promissory Notes, to whomsoever may be designated by
Bancomer, and it could be Mexitur itself, or another, duely endorsed in
favor of the Fiduciary, as well the product in cash derived from the
above mentioned Promissory Notes of the Portfolio, duely collected. The
Fiduciary shall continue collecting the Portfolio and the Maintenance
Fees through the Commissioner and Depository designated, under the same
conditions as those which have been agreed.
9.5 Once the FIDUCIARY receives from the Depository and Commissioner the
Portfolio's Promissory Notes, as well as the product in cash previously
collected by the Commissioner and Depository, it shall apply the
product in cash derived from the Collection of the Portfolio which at
that time may be found within the patrimony of the Trust to the payment
of the First Credit, under the terms of paragrah 9.6 following, and
Bancomer may instruct the Fiduciary so that, at Bancomer's election, it
may carry out one or more of the following options;
9.5.1 To continue with the Collection of the Portfolio and apply the
product received for this concept to the payment of the amounts
established in paragraph following, in the order and priority therein
established, in the understanding that when the First Credit has been
totally covered, the Fiduciary, without having to receive any
instructions, shall release the portion of the Portfolio which is
found in the patrimony of the Trust, and the amounts corresponding to
the Collection of Fees, including interests generated, in benefit of
the Founders of the Trust or the persons whom they may designate in
writing, and shall proceed to extinguish this Trust, since its
purposes have been fulfilled.
9.5.2 To discount, assign, or transmit, under any title, part or the total
amount of the Portfolio's Promissory Notes which are found within the
patrimony of the Trust to third parties, and apply the product
received for this concept to the payment of the amounts established in
the following paragraph 9.6, in the order and priority therein
established, and in the event of the total settlement of the First
Credit, the Fiduciary shall deliver by means of an endorsement in
ownership, the portion of the Portfolio which has not been discounted,
assigned or transmitted to third parties, as well as the amounts
responding to the Collection of Fees which may be found within the
patrimony of the Trust, including interest and accessories, to the
Founders of the Trust or to the parties who they may designate.
9.5.3 To deliver to Bancomer the Portfolio's Promissory Notes, for which it
shall endorse them in ownership, in the understanding that this fact
shall not imply the payment of the First Credit, but only insofar as
Bancomer can effectively collect the same and apply the product
received to the payment of the First Credit, as far as it may reach.
9.5.4 At the moment when,within the patrimony of the Triust, there are no
Promissory Notes on the Portfolio because the amount has been covered,
or is declared uncollectible, or due to another cause among those
provided in paragraphs 9.5.1, 9.5.2 and 9.53 above, the Fiduciary
shall release the amounts corresponding to the Maintenance Fees that
have not been employed under the terms of Clause Fourth hereunder,
including interests and accessories, in benefit of the Founders of the
Trust or whomsoever these may designate.
9.6 The Fiduciary shall apply the product of the Portfolio's collection
obtained in accordance with the present Clause, under the following terms:
(i) In the first place, to cover any fiscal obligation that may exist on
the Portfolio, or that may be generated due to the execution of this
contract
(ii) In the second place, to carry out the liquidation of outstanding Fees
in favor of the Fkiduciaary.
(iii)In the third place, to liquidate or reimburse the expenses that may
have been generated due to the execution of the Portfolio and which
have been paid by Bancomer.
(iv) In the fourth place, to liquidate the First Credit insofar as the
patrimony of the Trust may reach, against the presentation of the
statement of account certified by Bancomer's accountant, who shall
verify the debts existing in its favor and charged to the Accredited,
applied in the first place to the accessories and later to the
principal amount.
(v) In the fifth place, to deliver the remainder of the execution of the
Portfolio, if any, to the Founders of the Trust, in proportion to
their contributions made to the present Trust.
9.7 With respect to the First Credit.the Founders of the Trust and Bancomer
agree to submit to the conventional execution proceeding agreed in this
Clause, and they therefore grant their consent so that .in the event that
Bancomer should instruct this, the Fiduciary may proceed in accordance with
the agreement made in this Clause. The Founders of the Trust and Bancomer
aditionally agree that, if the execution proceeding does not fully satisfy
the obligations derived from the First Credit and guaranteed with this
Trust, they shall substitute the legal actions derived from the Portfolio's
Promissory Notes for the collection of any balance due, without prejudice
to the execution of the other guarantees agreed upon in favor of Bancomer,
and which will be independent and demandable in accordance with the
agreements made therein.
"Nineteenth - Applicable Legislation and Jurisdiction" This contract is
Interpreted in accordance with the laws in effect in the United Mexican
States.
The Founders of the Trust, Bancomer, Mexitur, ▇▇▇▇▇▇ and the Fiduciar
expressly agree and accept, for all the corresponding effects, that the
fiduciary guarantee granted in favor of Bancomer with respect to the First
Credit has been constituted prior to May 23, 2000, and furthermore, that
this Trust documents an instrument for the First Credit and for the Second
Credit, and, therefore, the stipulations contained in Title II, Chapter V,
Section II of the General Law for Credit Titles and Operations are NOT
applicable.
The parties herewith submit to the jurisdiction of the competent courts in
Mexico City, Federal District with respect to the legal actions that might
arise under the present Trust, waiving any jurisdiction or code of laws
that may correspond to them by virtue of their present or future domiciles.
SECOND - With the exception of the modifications provided in this Agreement, the
Irrevocable Trust Contract in Guarantee and the Source of Payment number
F626-99-5 subsists in all its terms and conditions; consequently this
agreement does not imly novation or modification to the obligations
contained the above mentioned Trust, and therefore this Agreement and the
Irrevocable Trust Contract in Guarantee and the Source of Payment
F626-99-5, form a single instrumental unit, and each and every one of the
stipulations of the second are applicable to the first as it may
correspond.
THIRD- The parties in the present Contract agree to leave without effect the
modifying agreement of the Irrevocable Trust in Guaranteee and Source of
Payment number F626-99-5, executed on the 15th day of December, 2000,
except for the designation of ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇ as
Mercantile Depository, for the effects established in the Trust
FOURTH - For the study and signature of this Contract, the Founders of the Trust
shall pay the Fiduciary on the date of signature of the Agreement, the
amount of $10,000.00 (Ten thousand pesos Pesos 00/100 Mexican Currency,
plus the corresponding Value Added Tax.
FIFTH - The parties set forth as their domiciles those which were established
in the Trust Contract which is modified through the present Agreement.
SIXTH - For the interpretation and fulfillment of this Contract, the parties
submit to the jurisdiction of the competent Courts in Mexico City, Federal
District, waiving at once the jurisdiction that may correspond to them by
virtue of their domicile or neighborhood.
In evidence of the above, this Agreement is prepared and signed on the 14th
day of June, ▇▇▇▇
▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇▇ ▇.▇. de C.V.
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By:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
Position: Legal Representative
C.R. Resorts Cancun, S. de R..L de C.V.
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By:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Position: Legal Representative
C.R. Resorts los Cabos, S. de ▇.▇. de C.V.
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By:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
Position: Legal Representative.
BBVA Bancomer, S.A.Institucion de Banca Multiple
Grupo Financero BBVA Bancomer
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Viezca /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierry
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By: ▇▇▇▇▇▇▇ Cuitlahulac Salazar Viezca By: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierry
Position: Legal Representative Position: Legal Representative
Fianzas Monterrey, S.A.
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Position: Fiduciary Delegate
C.R. Resorts Capital, ▇.▇▇ ▇.▇. de C.V.
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By:GustavoBermudez Ripol ▇▇▇▇▇▇▇▇
Position: Legal Representative
Corporacion Mexitur, S, de ▇.▇. de C.V.
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
Position: Legal Representative
Club ▇▇▇▇▇▇, S.A. de C.V.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
Position: Legal Representative
Desarrollos Turisticos ▇▇▇▇▇▇, S. de ▇.▇. de C.V.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Position: Legal Representative
