CONSENT OF GUARANTOR
AND AMENDMENT NO. 2 TO CORPORATE GUARANTEE
AND SUBORDINATION AGREEMENT
The undersigned, RAINTREE RESORTS INTERNATIONAL, INC., a Nevada corporation
("Guarantor"), hereby acknowledges that Guarantor executed and delivered to
FINOVA CAPITAL CORPORATION, a Delaware corporation ("Lender"), a Corporate
Guarantee and Subordination Agreement dated as of November 23, 1998 (the
"Original Guarantee"), as amended by that certain Consent of Guarantor and
Amendment No. 1 to Corporate Guarantee and Subordination Agreement (the "First
Amendment" and together with the Original Guarantee, "Guarantee Agreement")
guaranteeing performance of the obligations of CR RESORTS CANCUN, S. de X.X. de
C.V., a Mexican limited responsibility corporation with variable capital; CR
RESORTS LOS CABOS, S. de X.X. de C.V., a Mexican limited responsibility
corporation with variable capital; CR RESORTS PUERTO VALLARTA, S. de X.X. de
C.V., a Mexican limited responsibility corporation with variable capital;
CORPORACION MEXITUR, S. de X.X. de C.V., a Mexican limited responsibility
corporation with variable capital; CR RESORTS CANCUN TIMESHARE TRUST, S. de X.X.
de C.V., a Mexican limited responsibility corporation with variable capital; CR
RESORTS CABOS TIMESHARE TRUST, S. de X.X. de C.V., a Mexican limited
responsibility corporation with variable capital, and CR RESORTS PUERTO VALLARTA
TIMESHARE TRUST, S. de X.X. de C.V., a Mexican limited responsibility
corporation with variable capital, (individually, collectively, jointly and
severally, "Original Borrower"), to Lender under the Agreement, the Note and the
Receivables Loan Documents (as the terms "Agreement," "Note" and "Receivables
Loan Documents" are defined in the Guarantee Agreement). All terms used herein
with initial capital letters, to the extent not otherwise defined in the
Guarantee Agreement or this Instrument, shall have the meanings given such terms
in the Agreement.
Guarantor hereby acknowledges that pursuant to the terms of that certain
Amendment No. 1 to First Amended and Restated Loan and Security Agreement
("Agreement Amendment No. 1") of even date herewith, Lender proposes to, inter
alia, (i) to increase the amount of the Inventory Loan from Thirteen Million
Five Hundred United States Dollars (U.S. $13,500,000) to Sixteen Million Five
Hundred United States Dollars (U.S. $16,500,000) (the "Increased Inventory
Loan"), (ii) make each of Promotora Xxxxx Xxxx, S. de X.X. de C.V., a Mexican
limited responsibility corporation with variable capital ("Promotora") and Xxxxx
Xxxx Resort, S. de X.X. de C.V., a Mexican limited responsibility corporation
with variable capital ("Xxxxx Xxxx") additional borrowers and obligors under the
Receivables Loan Documents (as that term is redefined in the First Amendment),
(iii) to modify certain covenants contained in the Agreement, which covenants
include the pledging by Promotora and Xxxxx Xxxx to Lender of certain real
property interests owned by Promotora and Xxxxx Xxxx, and (iv) to increase the
Maximum Loan Amount from Thirty Two Million United States Dollars (U.S.
$32,000,000) to Thirty Four Million United States Dollars ($34,000,000), subject
to certain limitations imposed by the Indenture.
Guarantor further acknowledges that (i) the Increased Inventory Loan will
be evidenced by an Amended and Restated Inventory Promissory Note (the "Amended
Inventory Loan Note") to be executed and delivered to Lender by Original
Borrower, Promotora and Xxxxx Xxxx simultaneously with execution of the
Agreement Amendment No. 1, (ii) pursuant to the terms and conditions of the
Agreement Amendment No. 1, Lender and the Original Borrower are modifying and
amending certain of the Receivables Loan Documents (such modifications being
hereinafter referred to as the "Loan Document Modifications"), which Loan
Document Modification shall include, without limitation, the execution by the
Original Borrower, Promotora and Xxxxx Xxxx of an Amended and Restated
Receivables Promissory Note (the "Amended Receivables Loan Note") and (iii)
further pursuant to the terms and conditions of the Agreement Amendment No. 1,
Promotora and Xxxxx Xxxx are joining in, jointly and severally with each other
and with each of the entities constituting Original Borrower, as parties to and
borrowers and obligors under the Agreement and all of the other Receivables Loan
Documents.
Guarantor consents to the making and execution by the Original Borrower,
Promotora and Xxxxx Xxxx of the Agreement Amendment No. 1, the Amended Inventory
Loan Note, the Amended Receivables Loan Note and the other Loan Document
Modifications, consents to the joinder by Promotora and Xxxxx Xxxx as a party to
the Agreement and the other Receivables Loan Documents, and agrees that (i) the
Guarantee Agreement shall remain in full force and effect, (ii) Guarantor's
liability under the Guarantee Agreement shall continue undiminished by and shall
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include the obligations of the Original Borrower under the Agreement, the
Receivables Loan Documents, the Agreement Amendment No. 1, the Amended Inventory
Loan Note, the Amended Receivables Loan Note, the other Loan Document
Modifications and any other documents and instruments executed by Original
Borrower in connection with the Agreement Amendment No. 1, and shall further
include obligations of each of Promotora and Xxxxx Xxxx under the Agreement, the
Receivables Loan Documents, the Agreement Amendment No. 1, the Amended Inventory
Loan Note, the Amended Receivables Loan Note and the other Loan Document
Modifications, and (iii) all terms, conditions and provisions set forth in the
Agreement Amendment No. 1, the Amended Inventory Loan Note, the Amended
Receivables Loan Note, the other Loan Document Modifications and all other
documents and instruments executed by Original Borrower and Promotora or Xxxxx
Xxxx in connection therewith, are hereby ratified, approved and confirmed.
The Guarantor hereby confirms that the Guarantee Agreement, as amended
through the date hereof, remains in full force and effect. Guarantor hereby
reaffirms all of its agreements and covenants contained in the Guarantee
Agreement and reaffirms, as if made on the date hereof, all of its
representations and warranties contained in the Guarantee Agreement, except as
otherwise set forth on Exhibit 1 attached hereto. Guarantor acknowledges that as
of the date hereof, it has (a) no defense, counterclaim, offset,
cross-complaint, claim or demand of any nature whatsoever which can be asserted
as a basis to seek affirmative relief or damages from Lender or as a basis to
reduce or eliminate all or any part of its liability under the Guarantee
Agreement, and (b) no other claim against Lender with respect to any portion of
the transactions described in the Receivables Loan Documents, as amended through
the date hereof.
The Guarantee Agreement shall be further amended as follows:
(a) The reference in the Original Guarantee the term Borrower shall be
amended to mean the Original Borrower, Promotora and Xxxxx Xxxx, jointly
and severally.
(b) The provisions of paragraph 4.1(b) of the Original Guarantee
should be amended and restated in its entirety to read as follows:
(b) Guarantor wholly owns all of the issued and outstanding
shares of stock in Raintree Resorts Canada, LLC, Raintree Resorts
International Canada Ltd. and Canarias Future, SL; Raintree
Resorts Canada, LLC owns Raintree Resorts Holdings ULC: Raintree
Resorts International Canada Ltd. owns Whiski Xxxx Resorts Ltd.
and Northface Realty Co. Ltd; Whiski Xxxx Resorts Ltd. owns
Whistler Rental Accommodation Center Ltd.; Canarias Future, SL
owns CR Resorts Parent Nominee Holding, LLC; Canarias Future, SL
and CR Resorts Parent Nominee Holding, LLC own CR Resorts
Capital, S. de X.X. de C.V. and CR Resorts Holding, S. de X.X. de
C.V.; CR Resorts Capital, S. de X.X. de C.V. and CR Resorts
Parent Nominee Holding, LLC own CR Resorts Remainder Company, S.
de X.X. de C.V.; CR Resorts Holding, S. de X.X. de C.V. owns
Timeshare Nominee Holding, LLC; CR Resorts Holding, S. de X.X. de
C.V. and Timeshare Nominee Holding, LLC own Top Acquisition Sub,
S. de X.X. de C.V.; Top Acquisition Sub, S. de X.X. de C.V. and
Timeshare Nominee Holding, LLC own Desarollos Turisticos Xxxxxx,
S. de X.X. de C.V., CR Resorts Cancun, S. de X.X. de C.V., CR
Resorts Cabos, S. de X.X. de C.V.; and CR Resorts Puerto
Vallarta, S. de X.X. de C.V.; CR Resorts Cancun S. de X.X. de
C.V. owns CR Resorts Cancun Timeshare Trust S. de X.X. de C.V.;
CR Resort Los Cabos, S. de X.X. de C.V. owns CR Resorts Cabos
Timeshare Trust, S. de X.X. de C.V.; CR Resorts Puerto Vallarta,
S. de X.X. de C.V. owns CR Resorts Puerto Vallarta Timeshare
Trust, S. de X.X. de C.V., 99.98% of Promotora Xxxxx Xxxx, S. de
X.X. de C.V. and 99.98% of Xxxxx Xxxx Resort, S. de X.X. de C.V.;
Desarollos Turisticos Xxxxxx, S. de X.X. de C.V. owns Corporacion
Mexitur, S. de X.X. de C.V., Desarollos Turisticos Integrales
Cozumel, S. de X.X. de C.V., 67.85% of Club Xxxxxx, S.A. de C.V.,
Servicios Turisticos Integrales Cobamex, S. de X.X. de C.V., 50%
of Corporacion Habitacional Mexicana, S. de X.X. de C.V., .02% of
Promotora Xxxxx Xxxx, S. de X.X. de C.V. and .02% of Xxxxx Xxxx
Resort, S. de X.X. de C.V.
(c) The provisions of paragraph 4.1(j) of the Original Guarantee shall
be amended and restated in its entirety to read as follows:
(j) From and after December 31, 1999, Guarantor shall maintain a
Adjusted Net Worth of not less than the amount set forth below,
which shall be subject to a quarterly test by the Lender,
commencing on the quarter annual period ending December 31, 1999;
to this end, the Guarantor agrees to provide Lender within the
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time period and in the form set forth in the Agreement, the
financial statements and other financial information and reports
concerning Guarantor; for purposes of this Agreement the term (i)
Adjusted Net Worth shall mean, with respect to any date of
determination, Guarantor's consolidated net worth as determined
in accordance with GAAP, minus noncash currency exchange gains to
the extent that such gains increased net worth and plus noncash
currency exchange losses to the extent that such losses reduced
net worth, and (ii) "GAAP" shall mean generally accepted
accounting principles as in effect from time to time in the
United States, consistently applied, throughout the period
involved and with the prior periods, which shall include the
official interpretations thereof by the Financial Accounting
Standards Board or any successor thereto.
Test Date: Net Worth Covenant (US Dollars)
12/31/1999 ($ 9,600,000)
3/31/2000 ($11,800,000)
6/30/2000 ($16,900,000)
9/30/2000 ($16,500,000)
12/31/2000 ($19,200,000)
3/31/2001 ($15,700,000)
6/30/2001 ($19,500,000)
9/30/2001 ($22,000,000)
12/31/2001 ($27,000,000)
The Adjusted Net Worth covenant for each succeeding quarter test date
following December 31, 2001, throughout the remaining term of the Agreement
shall equal the Adjusted Net Worth set forth on reasonably prepared financial
projections prepared by Guarantor and approved by Lender reflecting Guarantor's
projected financial performance from December 31, 2001 throughout the remaining
term of the Agreement, which projection shall be delivered to Lender no later
than September 30, 2001. In the event Lender and Guarantor are unable to agree
upon the Adjusted Net Worth covenant for the period following December 31, 2001,
then such Adjusted Net Worth Covenant for all periods following December 31,
2001 shall equal the more positive of Guarantor's actual Adjusted Net Worth on
September 30, 2001 or ($27,000,000).
THIS INSTRUMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF STATE OF ARIZONA. FOR PURPOSES OF THIS PARAGRAPH, THIS INSTRUMENT SHALL
BE DEEMED TO BE PERFORMED AND MADE IN THE STATE OF ARIZONA.
[SIGNATURE PAGES FOLLOW]
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[SIGNATURE PAGE TO CONSENT OF GUARANTOR
AND AMENDMENT NO. 2 TO CORPORATE GUARANTEE
AND SUBORDINATION AGREEMENT]
IN WITNESS WHEREOF, Guarantor and Lender have hereunto executed this
instrument as of the _____ day of ____________, 1999.
RAINTREE RESORTS INTERNATIONAL, INC., a Nevada
corporation
By
Name
Title
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By
Name
Title
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EXHIBIT 1 TO
CONSENT OF GUARANTOR
Exceptions To Representations And Warranties Reaffirmed
By Guarantor Pursuant To This Consent
NONE
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