Exhibit 10.262
FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (the "AMENDMENT") is
made effective as of September 9, 2002, by and between TEXTRON FINANCIAL
CORPORATION, a Delaware corporation ("LENDER"), ROYALE MIRAGE PARTNERS, L.P., a
California limited partnership ("BORROWER"), RAINTREE NORTH AMERICA RESORTS,
INC., a Texas corporation ("RAINTREE"), RAINTREE RESORTS INTERNATIONAL, INC., a
Nevada corporation ("RAINTREE INTERNATIONAL") and MEGO FINANCIAL CORP. d/b/a
Leisure Industries Corporation, a New York corporation ("LEISURE").
BACKGROUND
A. Pursuant to the terms of a certain Loan and Security Agreement
between Lender and Borrower dated October 20, 1999 (as amended as described
below and as the same may be further amended, modified or supplemented from time
to time, the "LOAN AGREEMENT"), Borrower requested and Lender agreed, inter
alia, to extend to Borrower (a) a Development Loan in the original principal
amount of up to $18,200,000 and (b) a Receivables Loan in the original principal
amount of up to $20,000,000, subject to the terms and conditions set forth
therein.
B. Pursuant to that certain First Amendment to Loan and Security
Agreement between Lender and Borrower dated March 31, 2000 (the "FIRST
AMENDMENT"), Borrower requested and Lender agreed, inter alia, to extend certain
advance periods and amend certain borrowing sublimits under the Loans, subject
to the terms and conditions set forth therein.
C. Pursuant to that certain Second Amendment to Loan and Security
Agreement between Lender and Borrower (and consented to by Raintree) dated
December 11, 2000 (the "SECOND AMENDMENT"), Borrower requested and Lender
agreed, inter alia, to (i) consent to and approve the execution, delivery and
performance by Borrower of that certain Project Development, Management and
Sales Agreement between Borrower and Raintree dated effective May 3, 2000 (as
amended and as it may be amended, modified or supplemented from time to time,
the "PROJECT DEVELOPMENT AGREEMENT"), (ii) Raintree assuming, as of May 3, 2000,
the authority and responsibility for and the performance of all matters in
connection with the Project Development and Operation (as such term is defined
in the Project Development Agreement) and full control of and full financial and
other responsibility for the Project (as such terms are defined in the Project
Development Agreement), including without limitation, the performance of and
compliance with all terms and covenants of the Textron Loan and other Project
Loans (as such terms are defined in the Project Development Agreement), and
(iii) Raintree performing on behalf of Borrower all of Borrower's obligations
under the Loan Documents, including without limitation, such obligations of
Borrower related to the development, construction, marketing, operation,
management and administration of the Project and the sale
of Vacation Ownership Interests, subject to the terms and conditions set forth
in the Loan Agreement.
D. Pursuant to that certain Third Amendment to Loan and Security
Agreement between Lender, Borrower and Raintree dated September 28, 2001 (the
"THIRD AMENDMENT"), Borrower and Raintree requested and Lender agreed, inter
alia, to (i) add Raintree as a co-borrower under the Receivables Loan, and (ii)
amend and supplement certain terms and conditions of the Loan Agreement to
permit the sale of Vacation Ownership Interests by Raintree to Purchasers in
Mexico as a part of the Club ▇▇▇▇▇▇ Membership Program of Raintree, including
without limitation, the formation of the Cimarron Trust, as evidenced by that
certain Declaration of Covenants, Conditions and Restrictions and First Amended
and Restated Agreement of Trust (Cimarron Trust) dated effective September 28,
2001 among Raintree North America Resorts, Inc., as First Beneficiary or
Developer, BNY Western Trust Company, as successor in interest to U.S. Trust
Company, National Association, as Trustee, and Cimarron Beneficial Interest
Owners Association, as Association (the "TRUST AGREEMENT") into which Units will
be conveyed by Borrower or Raintree, and from which Raintree will sell Vacation
Ownership Interests to Purchasers, subject to the terms and conditions set forth
in the Loan Agreement.
E. As evidenced by the Third Amendment and the Project Documents (as
defined below), Raintree commenced the sales of Vacation Ownership Interests to
Purchasers in Mexico as a part of Raintree's Club ▇▇▇▇▇▇ Membership Program as
further described in the Affiliation Agreement, the Joint Operating Agreement,
the Mercantile Commission Agreement, the Services Contract and certain of the
other Project Documents.
F. Pursuant to that certain Purchase Agreement among Raintree
International, Raintree and Leisure dated of even date herewith (the "LEISURE
PURCHASE AGREEMENT"), Raintree agreed to sell to Leisure and Leisure agreed to
purchase from Raintree all of Raintree's right, title and interest in and to the
Project Development Agreement and the Trust Agreement, subject to the terms and
conditions set forth therein.
G. Pursuant to that certain Interval Purchase Agreement among Raintree
International, Raintree and Leisure dated of even date herewith (the "INTERVAL
PURCHASE AGREEMENT"), Leisure agreed to sell to Raintree and Raintree agreed to
purchase from Leisure certain Vacation Ownership Interests to sell to Purchasers
in Mexico as a part of the Club ▇▇▇▇▇▇ Membership Program of Raintree, subject
to the terms and conditions set forth therein and under the Loan Agreement.
H. Pursuant to that certain Purchase Agreement between O.B. Sports,
LLC, as seller, and Leisure, as purchaser, dated of even date herewith and all
other documents executed in connection therewith, Leisure has agreed to purchase
from O.B. Sports, LLC all of the outstanding membership interests owned by O.B.
Sports, LLC in Cimarron Golf Club, LLC subject to the terms and conditions set
forth therein. In addition, Leisure has agreed to assume certain obligations of
O.B. Sports, LLC to Lender (Golf Division) in connection with the purchase by
Leisure of the membership interests owned by O.B.
-2-
Sports, LLC in Cimarron Golf Club, LLC .
I. Borrower, Raintree and Leisure have requested and Lender has agreed to amend
the terms of the Loan Agreement in accordance with the terms and conditions of
this Amendment.
J. All capitalized terms not defined in this Amendment shall have the
meanings set forth in the Loan Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained in this Amendment and for other good and valuable
consideration, the receipt and adequacy of which are acknowledged, the parties
to this Amendment, intending to be legally bound hereby, agree as follows:
1. CONSENT. Notwithstanding anything to the contrary contained in the
Loan Agreement, the other Loan Documents or the Project Development Agreement,
Lender and Borrower hereby consent to and approve the sale by Raintree to
Leisure of all of Raintree's right, title and interest in and to the Project
Development Agreement and the Trust Agreement in accordance with the terms and
conditions of the Leisure Purchase Agreement. Such sale shall not constitute a
Default or an Event of Default under the Loan Agreement, the other Loan
Documents or the Project Development Agreement. Notwithstanding the foregoing,
Raintree agrees that such consent and approval, as set forth in this PARAGRAPH
1, shall not be deemed to be a release of Raintree of its obligations to
Borrower or Lender under the Project Development Agreement for the period from
May 3, 2000 through the date hereof. As a condition precedent to Lender's
consent as set forth in this ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ agrees to execute and deliver
to Lender a collateral assignment of all of Leisure's right, title and interest
in and to the Project Development Agreement and the Trust Agreement, which
collateral assignment shall be in form and content acceptable to Lender. By its
execution of this Amendment, Borrower hereby consents to and approves the
execution by Leisure of the collateral assignments in favor of Lender of
Leisure's right, title and interest in and to the Project Development Agreement
and the Trust Agreement, as evidenced by the collateral assignment agreements.
Lender, Raintree and Borrower agree that Borrower's obligations under the Loan
Documents related to the Receivables Loan will be performed by Raintree;
provided however, in no event will the performance by Raintree of such
obligations be construed to be a waiver of or release by Lender of Borrower's
obligations to Lender under the Loan Documents. Lender, Leisure and Borrower
agree that Borrower's obligations under the Loan Documents related to the
Development Loan will be performed by Leisure as expressly provided for and in
accordance with the terms and conditions of the Project Development Agreement;
provided however, in no event will the performance by Leisure of such
obligations be construed to be a waiver of or release by Lender of Borrower's
obligations to Lender under the Loan Documents. Borrower and Raintree will
execute and deliver to Lender a Amended and Restated Receivables Loan Note, in
form and content acceptable to Lender, evidencing Borrower's and Raintree's
-3-
obligations to Lender under the Receivables Loan.
2. CHANGE OF CONTROL. Leisure agrees that by purchasing Raintree's
right, title and interest in and to the Project Development Agreement, Leisure
has assumed all of the Developer's (as such term is defined in the Project
Development Agreement) obligations and covenants under the Project Development
Agreement, including assuming the authority and responsibility for and the
performance of all matters in connection with the Project Development and
Operation (as such term is defined in the Project Development Agreement) and
full control of and full financial and other responsibility for the Project (as
such terms are defined in the Project Development Agreement), including without
limitation, the performance of and compliance with all terms and covenants of
the Textron Loan and other Project Loans (as such terms are defined in the
Project Development Agreement) other than with respect to the Receivables Loan.
3. OBLIGATIONS OF LEISURE. Leisure covenants and agrees to perform on
behalf of Borrower all of Borrower's obligations under the Loan Documents
related to the Development Loan in accordance with the terms and conditions of
the Project Development Agreement. For purposes of clarification, (i) Leisure
shall not assume Borrower's or Raintree's obligations to Lender under the Loan
Documents related to the Receivables Loan, and (ii) Leisure will perform on
behalf of Raintree and Borrower all of Raintree's and Borrower's obligations
under the Loan Documents related to the Development Loan, including without
limitation, such obligations of Raintree and Borrower related to the
development, construction, operation, management and administration of the
Project.
4. CONTINUING OBLIGATIONS OF RAINTREE . Pursuant to the terms of the
Loan Agreement and the other Loan Documents, Raintree covenants and agrees to
continue to perform on behalf of Borrower all of Borrower's obligations
hereunder and under the Loan Documents related to the Receivables Loan and
certain obligations on behalf of Borrower as further described in the Interval
Purchase Agreement, including without limitation, such obligations of Borrower
and Raintree related to the marketing of the Project as further described in the
Interval Purchase Agreement and the sale of Vacation Ownership Interests in
accordance with the terms of the Loan Agreement and the other Loan Documents.
Raintree covenants and agrees to maintain and perform all of Raintree's
obligations under all of the project documents related to the Project
(collectively, the "PROJECT DOCUMENTS"), including without limitation, the
Amended and Restated Condominium Declaration, the Records Management Agreement,
the Lockbox Agreement, the Servicing Agreement, the Management Agreement, the
Affiliation Agreement, the Joint Operating Agreement, the Mercantile Commission
Agreement and the Services Contract. Raintree further covenants and agrees that
such Project Documents will not be modified or amended with the prior written
consent of Lender.
5. CONSENT TO INTERVAL PURCHASE AGREEMENT. Notwithstanding anything to
the contrary contained in the Loan Agreement or the other Loan Documents, Lender
hereby consents to and
-4-
approves the sale by Leisure of certain Vacation Ownership Interests to Raintree
in accordance with the terms of the Interval Purchase Agreement in order to
permit Raintree to continue to sell to Purchasers in Mexico such Vacation
Ownership Interests as a part of the Club ▇▇▇▇▇▇ Membership Program of Raintree.
Leisure and Raintree acknowledge and agree that certain release payment terms
set forth in the Interval Purchase Agreement may be increased from time to time
at Lender's reasonable discretion.
6. PRINCIPAL PAYMENTS. SECTION 5.1(B)(III) of the Loan Agreement shall
be and is hereby amended to read, in its entirety, as follows:
"(iii) Notwithstanding anything herein or elsewhere to the contrary,
the aggregate principal reduction payments on the Development Loan
received by Lender as Release Payments pursuant to SUBSECTIONS
5.1(B)(I) AND 5.1(B)(II) above must equal the following amounts as of
the following dates:
DATE AGGREGATE PRINCIPAL REDUCTIONS
September 1, 2002 $6,000,000.00
June 1, 2003 $12,000,000.00
November 1, 2003 $18,200,000.00
To the extent such payments have not been made as a result of the
Release Payments, Borrower, Raintree or Leisure shall make such
payments from other funds on the date set forth above."
7. INDEMNIFICATION OF LENDER. Raintree and Borrower, jointly and
severally, agree to be bound by the indemnification provisions set forth in
SECTION 17.22 of the Loan Agreement; provided however, Raintree's obligations
thereunder shall not extend to (a) any period prior to May 3, 2000, the
effective date of the Project Development Agreement, or (b) any period after
March 1, 2003 with respect to its obligations related to the Development Loan.
Leisure agrees to indemnify and hold harmless the Indemnified Lender Parties and
to be bound by the indemnification provisions set forth in SECTION 17.22 of the
Loan Agreement for any period after the date hereof in connection with the
performance by Leisure of Borrower's obligations under the Loan Documents
related to the Development Loan. In addition, (i) Raintree agrees that the
indemnification obligations set forth in SECTION 17.22 of the Loan Agreement
shall also extend to any and all liabilities, claims, demands, losses, damages,
cost and expenses related to Raintree's failure to perform its obligations under
this Amendment, (ii) Borrower agrees that the indemnification obligations set
forth in SECTION 17.22 of the Loan Agreement shall also extend to any and all
liabilities, claims, demands, losses, damages, cost and expenses related to
Borrower's failure to perform
-5-
its obligations under this Amendment, and (iii) Leisure agrees that the
indemnification obligations set forth in SECTION 17.22 of the Loan Agreement
shall also extend to any and all liabilities, claims, demands, losses, damages,
cost and expenses related to Leisure's failure to perform its obligations under
this Amendment.
8. NOTICES AND INFORMATION. Raintree and Leisure agree to provide to
Lender and Borrower such notices and information as required under SECTIONS
18.14 AND 18.15 of the Loan Agreement that otherwise would be delivered to
Lender by the Borrower. Lender agrees to provide to Raintree, Leisure and
Borrower such notices and information as required under the Loan Agreement that
otherwise would be delivered to Borrower by the Lender. Borrower consents to the
delivery to Raintree and Leisure of such notices and information provided that
Borrower also concurrently receives such notices and information. For purposes
hereof, all notices to Lender shall be provided to the parties and in the manner
set forth in the Loan Agreement and notices to Raintree, Leisure and Borrower
shall be provided to the parties set forth below in the manner set forth in the
Loan Agreement:
If to Raintree:
c/o Raintree Resorts International, Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
If to Leisure:
c/o Mego Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
If to Borrower:
▇/▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇ & Associates Ltd.
▇▇▇-▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
Notwithstanding anything to the contrary contained herein and in SECTIONS 18.14
AND 18.15 of the Loan Agreement, Borrower, Raintree and Leisure agree that
Lender is not obligated to deliver to Borrower, Raintree or Leisure any notice
or information received by Lender from such parties unless otherwise expressly
provided for in this PARAGRAPH 8 or under the Loan Agreement or other Loan
Documents.
-6-
9. ADDITIONAL COLLATERAL. Borrower, Leisure and Raintree acknowledge
and agree that the defined term "Collateral" shall have such meaning as provided
in the Loan Agreement and the other Loan Documents and shall be amended to
further include the following:
(i) A first priority assignment against and lien against the
proceeds from the Vacation Owner Agreement executed by Purchasers in
favor of Raintree encumbering the Vacation Ownership Interests
financed by the Notes Receivable, including a first priority
assignment of Raintree's rights (exercisable following the occurrence
of, and solely during the continuance of, an Event of Default
hereunder) to cancel such Vacation Owner Agreement and to re-sell (or
cause the resale of) the Vacation Ownership Interests relating to such
Vacation Owner Agreement;
(ii) All of Leisure's rights, title and interest (but not
obligations) as a beneficiary under the Trust Agreement with respect
to all matters related to or affecting all present and future Vacation
Owner Agreements and Vacation Ownership Interests assigned to Lender
from time to time; and
(ii) All of Leisure's rights, title and interest in to and under the
Project Development Agreement.
In addition, coincident with the execution of the Amendment, Raintree
International shall execute and deliver to Lender a guaranty agreement, in form
and content acceptable to Lender, evidencing Raintree International's obligation
to act as surety for and guarantee the obligations of Raintree to Lender under
the Receivables Loan, the Receivables Loan Note, the Loan Agreement and all
other Loan Documents.
10. GRANT OF SECURITY INTEREST. To secure the payment and performance
of the Obligations, Borrower, Leisure and Raintree unconditionally and
irrevocably assign, pledge and grant to Lender and ratify and confirm the prior
assignment, pledge and grant to Lender of a continuing first priority security
interest in and to the Collateral, as expanded as described in PARAGRAPH 9
above.
11. ADDITIONAL REPORTING AND INVENTORY CONTROL. Raintree will deliver
to Lender and Borrower on a monthly basis, or as otherwise more frequently
requested by Lender, a written sales report setting forth, among other things,
(i) the sales made or required to be made by Raintree during such period, (ii)
any payments made to Lender, Leisure and/or Borrower or other third parties in
connection with such sales, (iii) that sales made to Purchasers and Vacation
Ownership Interests held by Raintree are maintained at a 1.0 to 1.0 ratio, (iv)
a reconciliation of membership percentage to interval ownership, (v) a detailed
itemization of Vacation Ownership Interests sold during such period, and (vi)
such other additional information or reporting as may be requested by Lender.
Such report shall be in form and content acceptable to Lender and certified to
be true and correct by the chief financial officer of Raintree
-7-
and include any necessary footnote clarifications. In addition, Leisure will
deliver to Lender and Borrower on a monthly basis, or as otherwise more
frequently requested by Lender, (a) a written sales report setting forth, among
other things, an itemized description of the Vacation Ownership Intervals sold
by Leisure to Raintree under the Interval Purchase Agreement, including without
limitation, the purchase price and any other release fees or other sums paid in
connection therewith, and (b) a written report, in form and content acceptable
to Lender, detailing the status of Leisure's obtaining the necessary permits,
approvals, registrations, and authorizations as further described in PARAGRAPH
14 below and detailing the progress of the development of Phase I and Phase II
of the Project.
12. ASSESSMENTS. At the request of Lender, Borrower, Raintree and
Leisure acknowledge and agree that any and all payments from the sale of any
Vacation Ownership Interests received by Raintree, Leisure or their agents (net
of the Payout Amounts paid to Borrower under the Project Development Agreement
and release fees and other payments paid to Lender under the Loan Agreement) and
any assessments, maintenance fees or other operating expenses for the
maintenance, repair and operation of the Resort collected by Borrower, Raintree,
Leisure or their agents and any other sums or the proceeds thereof that
constitute Collateral for the Obligations will be forwarded to a lockbox
maintained by Lender or for its account. At the request of Lender, Borrower,
Raintree and Leisure will promptly execute such agreements or documents as
requested by Lender to evidence such agreement and will cause or direct any
Purchaser, Member, the VOI Association or any of Borrower's, Raintree's or
Leisure's agents to comply with such request.
13. THE TRUST. Leisure represents and warrants to Lender and covenants
and agrees with Lender as follows:
(A) Leisure will not amend or permit the amendment of the Trust
Agreement without the prior written consent of the Lender, such consent not to
be unreasonably withheld. Leisure will not enter into any new trust agreements
in any way related to the Units or any Vacation Ownership Interest now or
hereafter created without the prior written consent of the Lender, such consent
not to be unreasonably withheld. Leisure will cause all Units and Vacation
Ownership Interests to be conveyed to the Trustee, subject to the terms of the
Trust Agreement.
(B) In the event that the Trustee resigns or is replaced for any
reason as Trustee under the Trust Agreement, Leisure agrees that it will provide
the Lender with at least ten (10) days' prior written notice before any
replacement trustee is appointed by Leisure pursuant to the terms of the Trust
Agreement. Leisure agrees that any such replacement trustee must be reasonably
acceptable to the Lender.
(C) Leisure agrees to take any and all actions necessary to
prevent any lien (other than liens in favor of the Lender or the Permitted
Exceptions) from attaching to the legal or equitable ownership interest in any
Unit or Vacation Ownership Interest subject to the Trust Agreement,
-8-
provided however, Leisure shall not be obligated to take such action with
respect to liens attaching to Second Beneficial Interest previously sold to a
Purchaser.
(D) Leisure shall obtain and maintain or cause the Trustee to
obtain and maintain a fidelity bond or similar insurance in form, content and
amount reasonably acceptable to Lender insuring the Trustee from any and all
liability in any way related to or arising out of the Trust Agreement or any
matters related thereto or to any property held by the Trustee pursuant to the
Trust Agreement.
(E) As to each Vacation Ownership Interest covered by each
Vacation Owner Agreement, the Trustee pursuant to the terms of the Trust
Agreement will have good title to and lawful right and full authority to convey
the Vacation Ownership Interest to the Purchaser thereof. This will require the
applicable Payout Amounts to be remitted to Borrower and release fees and other
payments remitted to Lender as a condition precedent to the transfer of title to
the Trustee. Such Vacation Ownership Interests are not subject to any lien or
encumbrance except the lien in favor of the Lender and Permitted Exceptions.
14. REGISTRATION BY LEISURE. Coincident with the execution of this
Amendment, Leisure will undertake and diligently pursue the approval by the
State of California of Phase I and Phase II of the Project as a timeshare
project and deliver to Lender on or before March 1, 2003, evidence that a
timeshare public report has been issued and approved by the Division for Phase I
and Phase II of the Project and that Leisure and Phase I and Phase II of the
Project have all necessary permits, approvals, registrations, and authorizations
required under the Timeshare Act and all other applicable Legal Requirements.
15. ADDITIONAL RECEIVABLES LOAN FACILITY. Lender and Leisure agree to
negotiate in good faith the terms and conditions of an additional receivables
loan facility to be extended by Lender to Leisure in connection with the sale of
Vacation Ownership Interests at Phase I and Phase II of the Project in order to
consummate such financing contemporaneously with the issuance of the timeshare
public report and approval by the Division of Leisure and Phase I and Phase II
of the Project and the receipt by Leisure of all necessary permits, approvals,
registrations, and authorizations required under the Timeshare Act and other
applicable Legal Requirements. On or before ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇▇ will execute
and deliver to Lender such documents, agreements, statements, resolutions,
certificates, consents, opinions of counsel and other information as Lender may
require as negotiated by Lender and Leisure in good faith to evidence such
credit facility; provided however, in any event the terms and conditions of such
credit facility as evidenced by such documentation must comply with the formal
underwriting of Lender and be submitted to and approved by Lender's Credit
Committee. 16. ADDITIONAL EVENTS OF DEFAULT. The following subsections shall be
added as additional "Events of Default" under SECTION 22 of the Loan Agreement:
-9-
(A) The failure of Borrower, Raintree or Leisure to perform
or observe any obligations, covenants, agreements or warranties contained in
this Amendment, the Loan Agreement, any of the other Loan Documents or the Trust
Agreement and any applicable notice and cure periods have expired.
(B) A default or an Event of Default occurs under the
Project Development Agreement and any applicable notice and cure periods have
expired. (C) A default or an Event of Default occurs under the Leisure Purchase
Agreement and any applicable notice and cure periods have expired, provided that
such default or Event of Default would reasonably be expected to have a material
adverse effect on Leisure's ability to perform its obligations under the Project
Development Agreement.
(D) A default or an Event of Default occurs under the
Interval Purchase Agreement and any applicable notice and cure periods have
expired, provided that such default or Event of Default would reasonably be
expected to have a material adverse effect on Leisure's ability to perform its
obligations under the Project Development Agreement.
(E) A default or an Event of Default occurs under that
certain Purchase Agreement between O.B. Sports, LLC, as seller, and Leisure, as
purchaser, dated of even date herewith and all other documents executed in
connection therewith evidencing the purchase by Leisure from O.B. Sports, LLC of
all of the outstanding membership interests owned by O.B. Sports, LLC in
Cimarron Golf Club, LLC, provided that such default or Event of Default would
reasonably be expected to have a material adverse effect on Leisure's ability to
perform its obligations under the Project Development Agreement or constitute an
Event of Default under the Leisure Golf Loan (as defined below).
(F) An Event of Default occurs under the loan agreement,
assumption agreement or other agreements executed in connection therewith
between Leisure and Lender (Golf Division) related to the assumption by Leisure
of the outstanding obligations of O.B. Sports, LLC to Lender (Golf Division)
(the "LEISURE GOLF LOAN").
17. ADDITIONAL REMEDIES. In addition to the remedies set forth in
SECTION 23 of the Loan Agreement and in other sections of the Loan Documents,
should an Event of Default occur, Lender may, take any one or more actions
described in this Amendment or any of the other documents executed in connection
herewith or given as security therefor, and any other rights and remedies
available to Lender at law or in equity.
18. LIMITATION OF REMEDIES. Lender agrees that if Borrower or Raintree
(i) fails to perform its obligations under the Receivables Loan resulting
directly from Borrower's or Raintree's failure to make when due, any payment or
mandatory prepayment of principal or interest on the Receivables Loan, or (ii)
impairs or jeopardizes any of the Receivables Loan Collateral as determined by
Lender in its sole
-10-
and absolute discretion, or (iii) fails to continue to perform its obligations
related to sales actives related to the sale of Vacation Ownership Interests
(including without limitation, any representations, warranties or covenants
related thereto) or (iv) fails to comply with any representation, warranty or
covenant of Borrower or Raintree under the Loan Agreement or the other Loan
Documents, Lender will not seek to enforce its rights or remedies under the Loan
Documents against Leisure, the Resort or the Property. Notwithstanding the
foregoing, Borrower, Raintree and Leisure agree that such limitation shall not
prohibit Lender from exercising any other rights or remedies available to Lender
under the Loan Documents, at law or in equity.
19. REPURCHASE OR RESALE OF VACATION OWNERSHIP INTERESTS. In the event
that Lender exercises any of its rights and remedies under the Loan Documents
and forecloses upon any Vacation Ownership Interests, Lender and Leisure agree
to negotiate in good faith the terms and conditions upon which Leisure would
purchase, market or sell such Vacation Ownership Interests from or on behalf of
Lender, including without limitation, the purchase price or the marketing and
sale terms, and any documents or agreements evidencing such terms and conditions
of such purchase or marketing and sales. Lender and Leisure agree that Leisure
has the option, but is not obligated, to purchase, market or sell such Vacation
Ownership Interests from Lender unless a formal agreement among the parties is
consummated.
20. ADDITIONAL CONDITIONS. The obligation of Lender to enter into this
Amendment is subject to the satisfaction of Lender in its sole and absolute
discretion of the conditions precedent set forth on EXHIBIT A attached hereto.
Borrower, Raintree and Leisure agree that Borrower's, Raintree's or Leisure's
failure to comply in Lender's sole and absolute discretion with the post-closing
obligations set forth on EXHIBIT B attached hereto, Lender may, at its option,
cease to make further Advances to Borrower or Raintree under the Receivables
Loan.
21. ADDITIONAL DOCUMENTS; FURTHER ASSURANCES. Borrower, Raintree and
Leisure covenant and agree to execute and deliver to Lender, or to cause to be
executed and delivered to Lender contemporaneously herewith, at the sole cost
and expense of Borrower, Raintree and Leisure, any and all other documents,
agreements, statements, resolutions, certificates, consents, opinions of counsel
and information as Lender may require in connection with the matters or actions
described herein. Borrower, Raintree and Leisure further covenant and agree to
execute and deliver to Lender or to cause to be executed and delivered at the
sole cost and expense of Borrower, Raintree and Leisure, from time to time, any
and all other documents, agreements, statements, certificates and information as
Lender shall request to evidence or effect the terms hereof or any of the other
Loan Documents, or to enforce or to protect Lender's interest in the Collateral.
All such documents, agreements, statements, certificates and information shall
be in form and content acceptable to Lender in its sole discretion.
22. PROTECTION OF COLLATERAL. Borrower, Raintree and Leisure hereby
authorize and appoint Lender to take such actions as Lender may deem advisable
to protect the Collateral and its interests thereon and its rights thereunder,
to execute on the Borrower's, Raintree's or Leisure's behalf and
-11-
file at Borrower's, Raintree's and Leisure's expense financing statements, and
amendments thereto, in those public offices deemed necessary or appropriate by
Lender to establish, maintain and protect a continuously perfected security
interest in the Collateral, and to execute on the Borrower's, Raintree's and
Leisure's behalf such other documents and notices as Lender may deem advisable
to protect the Collateral and its interests therein and its rights thereunder.
23. CHALLENGES TO ENFORCEMENT. Borrower and Raintree acknowledge and
agree that they do not have any defense, setoff, counterclaim or challenge
against the payment of any sums owing under the Loan Documents or the
enforcement of any of the terms and conditions of the Loan Documents. Leisure
acknowledges and agrees that it does not have any defense, setoff, counterclaim
or challenge against the payment of any sums owing under the Loan Documents
related to the Development Loan or the enforcement of any of the terms and
conditions of the Loan Documents related to the Development Loan unless
otherwise expressly provided herein.
24. CONFIRMATION OF COLLATERAL. Nothing contained in this Amendment
shall be deemed to be a compromise, satisfaction, accord and satisfaction,
novation or release of any of the Loan Documents or any obligations under the
Loan Documents, or a waiver by Lender of any of its rights under the Loan
Documents, at law or in equity. Notwithstanding anything to the contrary
contained in the Project Development Agreement or the Leisure Purchase
Agreement, all liens, security interest, rights and remedies granted to the
Lender herein and under the Loan Documents are hereby ratified, confirmed and
continued.
25. REPRESENTATIONS AND WARRANTIES OF BORROWER. Borrower represents
and warrants, which representations and warranties shall survive until all
obligations owed by Borrower to Lender under the Loan Documents are paid and
satisfied in full, as follows:
(A) All representations and warranties of Borrower set forth in
the Loan Documents are true and complete as of the date hereof.
(B) To its actual knowledge, no condition or event exists or has
occurred which would constitute a Default or an Event of Default under the Loan
Documents.
(C) The representations, warranties and other agreements of
Borrower as set forth in that certain Consent and Estoppel Letter (as described
in the Leisure Purchase Agreement)are true and correct and Lender is relying on
such letter in entering into this Amendment.
(D) The execution of this Amendment by Borrower and all documents
or agreements to be executed or delivered pursuant to the terms of this
Amendment:
(I) have been duly authorized by all requisite action
of Borrower;
-12-
(II) will not conflict with or result in the breach of
or constitute a default (upon the passage of time, delivery of notice or both)
under Borrower's formation and governing documents or under any applicable
statute, law, rules, regulation or ordinance, or any indenture, mortgage, loan
or other document or agreement to which Borrower is a party or by which Borrower
may be bound or affected; and
(III) will not result in the creation or imposition of
any additional lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of Borrower, except liens in favor of the Lender.
26. REPRESENTATIONS AND WARRANTIES OF RAINTREE. Raintree represents
and warrants, which representations and warranties shall survive until all
obligations owed by Raintree to Lender under the Loan Documents are paid and
satisfied in full, as follows:
(A) All representations and warranties of Raintree set forth in
the Loan Documents are true and complete as of the date hereof, except as set
forth in the Disclosure Schedule appended to the Leisure Purchase Agreement.
(B) No condition or event exists or has occurred which would
constitute a Default or an Event of Default under the Loan Documents, except as
set forth in the Disclosure Schedule appended to the Leisure Purchase Agreement.
(C) The execution of this Amendment by Raintree and all documents
or agreements to be executed or delivered pursuant to the terms of this
Amendment:
(I) have been duly authorized by all requisite action of
Raintree;
(II) will not conflict with or result in the breach of or
constitute a default (upon the passage of time, delivery of notice or both)
under Raintree's formation and governing documents or under any applicable
statute, law, rules, regulation or ordinance, or any indenture, mortgage, loan
or other document or agreement to which Raintree is a party or by which Raintree
may be bound or affected; and
(III) will not result in the creation or imposition of any
additional lien, charge or encumbrance of any nature whatsoever upon any of the
property or assets of Raintree, except liens in favor of the Lender.
(D) The federal taxpayer's identification number of Raintree is
▇▇-▇▇▇▇▇▇▇
-13-
(E) That certain Indemnification Letter Agreement from Raintree
International and Raintree in favor of Lender dated November 20, 2001 is in full
force and effect and is hereby ratified and confirmed.
(F) Raintree has paid to Lender all outstanding release fees due
and owing to Lender in connection with the release by Lender of certain Units
deeded into the Trust for the period through and including the date hereof.
(G) Raintree has paid to Borrower all Payout Amounts due and
owing to Borrower under the Project Development Agreement for the sale of
Vacation Ownership Interests for the period through and including the date
hereof.
(H) Raintree has entered into valid and binding agreements of
sale, pursuant to which Raintree has sold as of July 31, 2002 a total of 1,518
Vacation Ownership Interests. All of such sales of Vacation Ownership Interests
have been in compliance with all applicable statutes, laws, rules, regulations
and other legal requirements. Attached hereto as EXHIBIT B is a list describing
all of such sales, which list is accurate and complete and includes all footnote
clarifications.
27. REPRESENTATIONS AND WARRANTIES OF RAINTREE INTERNATIONAL.
Raintree International represents and warrants, which representations and
warranties shall survive until all obligations owed by Raintree International to
Lender under the Receivables Loan is paid and satisfied in full, as follows:
(A) The execution of this Amendment by Raintree
International and all documents or agreements to be executed or delivered
pursuant to the terms of this Amendment:
(I) have been duly authorized by all requisite action
of Raintree International;
(II) will not conflict with or result in the breach of
or constitute a default (upon the passage of time, delivery of notice or both)
under Raintree International's formation and governing documents or under any
applicable statute, law, rules, regulation or ordinance, or any indenture,
mortgage, loan or other document or agreement to which Raintree International is
a party or by which Raintree International may be bound or affected; and
(III) will not result in the creation or imposition of
any additional lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of Raintree International, except liens in favor of the
Lender.
-14-
(B) That certain Indemnification Letter Agreement from
Raintree International and Raintree in favor of Lender dated November 20, 2001
is in full force and effect and is hereby ratified and confirmed.
28. REPRESENTATIONS AND WARRANTIES OF LEISURE. Leisure represents and
warrants, which representations and warranties shall survive until all
obligations owed by Leisure to Lender under the Loan Documents are paid and
satisfied in full, as follows:
(A) The execution of this Amendment by Leisure and all
documents or agreements to be executed or delivered pursuant to the terms of
this Amendment:
(I) have been duly authorized by all requisite action
of Leisure;
(II) will not conflict with or result in the breach of
or constitute a default (upon the passage of time, delivery of notice or both)
under Leisure's formation and governing documents or under any applicable
statute, law, rules, regulation or ordinance, or any indenture, mortgage, loan
or other document or agreement to which Leisure is a party or by which Leisure
may be bound or affected; and
(III) will not result in the creation or imposition of
any additional lien, charge or encumbrance of any nature whatsoever upon any of
the property or assets of Leisure, except liens in favor of the Lender.
(B) The federal taxpayer's identification number of Leisure
is ▇▇-▇▇▇▇▇▇▇.
29. CERTAIN FEES, COSTS, EXPENSES AND EXPENDITURES. Borrower, Raintree
and Leisure will be responsible for all of Lender's expenses in connection with
the review, preparation, negotiation, documentation and closing of this
Amendment and the consummation of the terms and transactions contemplated under
this Amendment, including without limitation, fees, disbursements, expenses and
costs of counsel retained by Lender, all fees related to filings, recording of
documents and searches, whether or not the transactions contemplated under this
Amendment are consummated; provided however, all of such expenses shall be paid
from proceeds of the Loan.
30. RELEASE. Borrower, Raintree and Leisure acknowledge and agree that
they have no claims, suits or causes of action against Lender and hereby remise,
release and forever discharge Lender, its officers, directors, shareholders,
representatives and their successors and assigns, from any claims, suits or
causes of action whatsoever, in law or in equity, which Borrower, Raintree or
Leisure may have against them at any time up to and including the date of this
Amendment.
-15-
31. NO WAIVER. Nothing contained in this Amendment shall be deemed to
be a waiver, release or amendment of or to any rights, remedies or privileges
afforded to Lender under the Loan Documents or under the Uniform Commercial
Code. Nothing contained in this Amendment shall constitute a waiver by Lender of
Borrower's, Raintree's or Leisure's compliance with the terms of the Loan
Documents, nor shall anything contained in this Amendment constitute an
agreement by Lender to enter into any further amendments with Borrower, Raintree
or Leisure.
32. INCONSISTENCIES. To the extent of any inconsistency between the
terms and conditions of this Amendment and the terms and conditions of the other
Loan Documents, the terms and conditions of this Amendment shall prevail. All
terms and conditions of the Loan Documents not inconsistent with this Amendment
shall remain in full force and effect and are hereby ratified and confirmed by
Borrower, Raintree and Leisure.
33. CONSTRUCTION. All references to the Loan Agreement therein or in
any other Loan Documents shall be deemed to be a reference to the Loan Agreement
as amended hereby.
34. BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
35. GOVERNING LAW. This Amendment shall be governed as to the
validity, interpretation, construction, enforcement and in all other respects by
the law of the State of Rhode Island, without regard to its rules and principles
regarding conflicts of laws or any rule or ▇▇▇▇▇▇ of construction which
interprets agreements against the draftsman. Notwithstanding anything to the
contrary provided herein or in any of the other Loan Documents, Borrower,
Raintree and Leisure expressly waive any and all claims to jurisdiction in
Mexico or any other states in the United States other than the State of Rhode
Island.
36. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original without the production of any other counterpart.
37. SEVERABILITY. The provisions of this Amendment and all other Loan
Documents are deemed to be severable, and the invalidity and unenforceability of
any provision shall not affect or impair the remaining provisions which shall
continue in full force and effect.
38. HEADINGS. The headings of the sections of this Amendment are
inserted for convenience only and shall not be deemed to constitute a part of
this Amendment.
39. LITIGATION. To the fullest extent not prohibited by applicable law
which cannot be waived, each of the Borrower, Raintree, Leisure and Lender
hereby knowingly waives any and all right to
-16-
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 Amendment, 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 verbal 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 the Borrower, Raintree, Leisure
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, the Borrower, Raintree and Leisure
hereby certify that no representative or agent of Lender, nor 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.
The Borrower, Raintree and Leisure acknowledge that the provisions of this
section are a material inducement to Lender's agreement to enter into this
Amendment.
40. NO AMENDMENT TO PROJECT DEVELOPMENT AGREEMENT. Nothing in this
Amendment is intended or shall be construed to amend or modify the terms and
conditions of the Project Development Agreement.
41. WAIVER OF DEFAULTS; RESERVATION OF RIGHTS. Lender agrees for the
benefit of Leisure and Borrower to waive Raintree's defaults under the Loan
Agreement and other Loan Documents resulting from (i) the Chapter 11 bankruptcy
filing by Raintree U.S. Holdings, L.L.C., the parent of Raintree, and (ii) those
defaults occurring under or as a result of the default under that certain
Indenture among Raintree International (f/n/a Club ▇▇▇▇▇▇ Resorts, Inc.), CR
Resorts Capital, S. de ▇.▇. de C.V. and IBJ ▇▇▇▇▇▇▇▇▇ Bank and Trust Company
dated December 5, 1997; provided however, such waiver shall not be construed to
limit in any manner Lender's rights and remedies against Raintree under the Loan
Agreement, the other Loan Documents or any other agreements between Raintree and
Lender.
-17-
IN WITNESS WHEREOF, the parties hereto have executed this Amendment effective
as of the day and year first above written.
ROYALE MIRAGE PARTNERS, L.P., a California
limited partnership
By: RMP-GP, Inc., a California corporation, its sole
general partner
By: ________________________________________
▇.▇. ▇▇▇▇▇▇, President
By: ________________________________________
▇▇▇▇▇ ▇▇▇, Senior Vice President
RAINTREE NORTH AMERICA RESORTS,
INC., a Texas corporation
________________________ By:__________________________________________
Witness: ______________ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
RAINTREE RESORTS INTERNATIONAL, INC.,
a Nevada corporation
________________________ By:__________________________________________
Witness: ______________ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Operating Officer
MEGO FINANCIAL CORP. d/b/a Leisure Industries
Corporation, a New York corporation
________________________ By:__________________________________________
Witness: ______________ Name/Title:___________________________________
-18-
TEXTRON FINANCIAL CORPORATION, a
Delaware corporation
By:___________________________________
Name/Title:_____________________________
-19-
EXHIBIT A
CONDITIONS PRECEDENT
(A) AMENDMENT DOCUMENTS. Borrower, Raintree and Leisure and all
other required persons and entities will have executed and delivered
to Lender this Amendment and such other documents as Lender may
require.
(B) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of Borrower, Raintree and Leisure as set forth in the Loan Documents,
the Trust Agreement and the Leisure Purchase Agreement, as applicable, will be
true at and as of the date hereof.
(C) NO DEFAULT. No condition or event shall exist or have
occurred which would constitute a Default or an Event of Default hereunder.
(D) LEISURE PURCHASE DOCUMENTS. Raintree or Leisure shall deliver
or cause to be delivered to Lender a fully executed copy of the Leisure Purchase
Agreement, the Interval Purchase Agreement and all other documents executed in
connection therewith, including without limitation, any and all documents,
agreements, statements, resolutions, certificates, consents, opinions of counsel
and other information to be delivered by Raintree and Leisure as provided
therein.
(E) O.B. DOCUMENTS. Leisure shall deliver or cause to be
delivered to Lender a fully executed copy of that certain Purchase Agreement
between O.B. Sports, LLC, as seller, and Leisure, as purchaser, dated of even
date herewith and all other documents executed in connection therewith
evidencing the purchase by Leisure from O.B. Sports, LLC of all of the
outstanding membership interests owned by O.B. Sports, LLC in Cimarron Golf
Club, LLC. In addition, Leisure shall deliver or cause to be delivered to Lender
a fully executed copy of that certain Assumption Agreement and all other
agreements in connection therewith evidencing the assumption by Leisure or its
affiliate of certain obligations of O.B. Sports, LLC to Lender under that
certain credit facility extended to O.B. Sports, LLC by Lender, as evidenced by
that certain Loan Agreement between O.B. Sports, LLC and Lender dated of even
date herewith and all other documents executed in connection therewith.
(F) PROJECT DEVELOPMENT AGREEMENT. Raintree shall deliver to
Lender evidence that Raintree has cured or has caused Borrower to waive any and
all existing defaults (whether payment or performance) under the Project
Development Agreement.
(F) OTHER. Raintree and Leisure shall deliver or cause to be
delivered to Lender all other documents, agreements, statements, resolutions,
certificates, consents, opinions of counsel and information as Lender may
require in its sole and absolute discretion.
-20-
EXHIBIT B
POST-CLOSING CONDITIONS
(A) THIRD AMENDMENT DOCUMENTATION. On or before September 30,
2002, Raintree shall deliver or cause to be delivered to Lender all of the
documents, agreements, statements, resolutions, certificates, consents, opinions
of counsel and other information as required under the Third Amendment,
including without limitation, such documents, agreements, statements,
resolutions, certificates, consents, opinions of counsel and other information
as further described in EXHIBITS B AND C appended thereto.
(F) OTHER. Promptly upon the request by Lender, Raintree and
Leisure shall deliver or cause to be delivered to Lender all other documents,
agreements, statements, resolutions, certificates, consents, opinions of counsel
and information as Lender may require in its sole and absolute discretion.
-21-
