SECOND AMENDED AND RESTATED
PAYMENT GUARANTY AND SUBORDINATION AGREEMENT
SECOND AMENDED AND RESTATED PAYMENT GUARANTY AND SUBORDINATION
AGREEMENT (as amended from time to time, this "Second Amended Guaranty
Agreement") dated as of December 29, 2000, is made by Raintree Resorts
International, Inc., a Nevada corporation ("Guarantor"), in favor of TEXTRON
FINANCIAL CORPORATION, a Delaware corporation ("Lender").
PRELIMINARY STATEMENT
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, CR
Resorts Puerto Vallarta Timeshare Trust, S. de X.X. de C.V. a Mexican limited
responsibility corporation with variable capital, XXXXX XXXX RESORT, S. DE X.X.
DE C.V., a Mexican limited responsibility corporation with variable capital
("Xxxxx Xxxx") and PROMOTORA XXXXX XXXX, S. DE X.X. DE C.V., a Mexican limited
responsibility corporation with variable capital (collectively, jointly and
severally, the "Borrower"), having an address at c/o Raintree Resorts
International, Inc., 00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and
Lender have entered into a certain Loan and Security Agreement dated as of
November 23, 1999, as amended by that certain Loan Modification Agreement dated
as of November 20, 2000 (the "First Modification Agreement") and by that certain
Second Loan Modification Agreement of even date hereof (the "Second Modification
Agreement") to which Guarantor hereby consents, and as further amended from time
to time (the "Loan Agreement"). Pursuant to the terms and subject to the
conditions of the Loan Agreement and the other Loan Documents, Lender has agreed
to lend to the Borrower up to $18,000,000.00 (the "Loan").
Guarantor, through certain of its subsidiaries in which Guarantor holds
a majority ownership interest, owns a majority ownership interest in each of the
Borrower entities, and Guarantor is involved in overseeing the business
operations of the Borrower and the Resorts, and derives material benefit from
such operations.
This Second Amended Guaranty Agreement is the "Guaranty" described in the
Loan Agreement and replaces and supersedes both the Guaranty and Subordination
Agreement dated November 23, 1999 executed by Guarantor and the Amended and
Restated Payment Guaranty and Subordination Agreement dated November 20, 2000
executed by Guarantor.
Lender's agreement to enter into the Loan Agreement and make any
Advance is conditioned, among other things, upon the execution and delivery by
Guarantor of this Second Amended Guaranty Agreement pursuant to which the
Guarantor unconditionally guaranties payment and performance of the Obligations
of Borrower to Lender. The Guarantor will materially benefit from Lender's
making available to the Borrower the Loan, and has agreed to execute and deliver
this Second Amended Guaranty Agreement, and to perform in accordance with its
terms.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lender to enter into the Loan Documents and to make any Advances, and to secure
the performance and observance by the Guarantor of Borrower's Obligations,
whether now existing or hereafter arising, Guarantor has executed and delivered
this Second Amended Guaranty Agreement and does hereby agree as follows:
1. Definitions, Etc. The above Preliminary Statement is true and
correct and is incorporated within and made a part of this Second Amended
Guaranty Agreement. Capitalized terms used herein which are defined in the Loan
Agreement shall have the meanings assigned to them therein, unless the context
otherwise requires or unless otherwise defined herein. Any references to this
"Agreement" shall mean this Second Amended Guaranty Agreement including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Second Amended Guaranty Agreement as
the same may be in effect at the time such reference becomes operative. Any
references to "Guarantor" shall mean Raintree Resorts International, Inc., a
Nevada corporation.
2. The Guaranty. The Guarantor covenants and agrees as follows:
(a) Guarantor hereby unconditionally and irrevocably guaranties to
Lender, its successors and assigns, the due and punctual payment by
Borrower of all principal, interest, prepayment premiums, late charges,
loan expenses, and all other amounts payable under the Note or the other
Loan Documents, and all Obligations at any time owing under the Loan, and
all costs of collecting amounts due from the Guarantor, including without
limitation reasonable attorneys' and paralegals' fees and disbursements,
when the same shall become due and payable, whether at maturity, by
acceleration or otherwise, including any portion of such Obligations
nominally held by Lender on behalf of those who have participations or
interests therein granted or created by Lender (collectively, the
"Guaranteed Obligations").
(b) Guarantor agrees that the guaranty given hereby is a guaranty of
payment and not of collection, and that its obligations hereunder shall be
primary, absolute and unconditional, irrespective of, and unaffected by,
the Borrower's performance or failure to perform or satisfy all of its
Obligations arising out of the Note and other Loan Documents, and Guarantor
irrevocably waives and agrees not to assert or take advantage of:
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(i) the genuineness, validity, legality, regularity,
enforceability or any future amendment of, or change in, this Second
Amended Guaranty Agreement, any of the other Loan Documents or any
other agreement, document or instrument to which the Borrower or
Guarantor, or any other guarantors of the Obligations, is or may be a
party;
(ii) the absence of any action to enforce this Second Amended
Guaranty Agreement, any of the other Loan Documents or any other
agreement, document or instrument to which the Borrower or Guarantor,
or any other guarantors of the Obligations, is a party;
(iii) any right at law, or in equity or otherwise, to require
Lender to institute suit or proceed against the Borrower, any other
guarantors or any other Person, or the Collateral, or to exhaust any
security held by Lender, or to pursue any other remedy in Lender's
power, before proceeding against Guarantor;
(iv) any defense arising by virtue of any statute of limitations,
or based on lack of authority, dissolution or ultra xxxxx action;
(v) notice of the existence, creation or incurring of any new or
additional indebtedness or obligations on the part of the Borrower;
(vi) the waiver, release, surrender, discharge, indulgence,
extension, modification, renewal, delay, consent, or other action,
inaction or omission by Lender with respect to any of the provisions
hereof or thereof, or with respect to the Borrower, any of the
Obligations or any of the Collateral, whether or not the Guarantor
shall have had notice or knowledge of any of the foregoing and whether
or not Guarantor shall have consented thereto;
(vii) the existence, value or condition of, or failure of the
Lender to perfect its Lien against, any Collateral, or any action, or
the absence of any action, by the Lender in respect thereof
(including, without limitation, the failure to enforce any Lien or
realize upon all or any portion of the Collateral, or the release of
any Collateral);
(viii) the validity or enforceability of the guaranty of
Guarantor or any other guarantor or surety with respect to the
Obligations;
(ix) any claim or defense that the Loan does not constitute a
"Permitted Debt" or that the Loan is otherwise not allowed pursuant to
the provisions of that certain December 5, 1997 Indenture entered by
Guarantor (the "Indenture");
(x) any claim or defense that the Loan is not permitted or
allowed pursuant to the provisions of the FINOVA Loan Agreement (as
such term is defined in the Loan Agreement); or
(xi) any other action or circumstance which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor.
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(c) To the extent Borrower, Guarantor, or any other Person primarily
or secondarily liable for the Obligations, makes a payment or payments to
Lender, all or any portion of which is subsequently invalidated, declared
to be fraudulent or preferential, set aside or required, for any of the
foregoing reasons or for any other reason, to be waived, repaid or paid
over to a trustee, receiver or any other party under any bankruptcy or
other Debtor Relief Laws, other state or federal law, common law or rule of
equity, then the Guaranteed Obligations or part thereof that were intended
to be satisfied by such payment or payments shall, to the full extent of
all of such payments required to be waived, repaid, restored or paid over,
automatically be revived, reinstated and continued in full force and effect
as if said payment or payments had not been made, and Guarantor shall again
be primarily liable therefor. The Guarantor's obligations under this Second
Amended Guaranty Agreement shall not be discharged until the passage of at
least thirteen (13) calendar months from the last date on which occurs the
full, final and indefeasible payment and performance of the Guaranteed
Obligations; provided, however, that this Second Amended Guaranty
Agreement, and Guarantor's obligations hereunder, shall continue to be
effective or be reinstated, as the case may be, if at any time payment or
performance of any of the Obligations or Guaranteed Obligations, or any
part thereof, is rescinded or waived or must otherwise be restored by
Lender upon the bankruptcy or other proceeding under any Debtor Relief Laws
of or affecting the Borrower or Guarantor, and shall continue in full force
and effect as long as there exists a right to rescind, or to compel
restoration or waiver, of any payment or performance of any of the
Obligations or Guaranteed Obligations. This provision shall survive full
payment and performance of the Guaranteed Obligations and remain
enforceable by Lender.
(d) If Lender, under applicable law, proceeds to realize its benefits
under any of the Loan Documents giving Lender a Lien upon any Collateral,
whether owned by Borrower or by any other Person, either by judicial
foreclosure or by non-judicial sale or enforcement, Lender may, at its sole
option, determine which of its remedies or rights it may pursue without
affecting any of its rights and remedies under this Second Amended Guaranty
Agreement. If, in the exercise of any of its rights or remedies, Lender
shall forfeit or lose any of its rights or remedies, including its right to
enter a deficiency judgment against Borrower or any other Person, whether
because of any applicable laws pertaining to "election of remedies" or the
like, Guarantor hereby consents to such action by Lender and waives any
claim based upon any election of remedies, even if a remedy asserted or
action taken by Lender shall result in a full or partial loss of rights of
subrogation, if any, which Guarantor might otherwise have had. Any election
of remedies which results in the denial or impairment of the right of
Lender to seek a deficiency judgment against Borrower shall not impair
Guarantor's obligation to pay the full amount of the Guaranteed Obligations
to Lender and to perform its obligations under this Second Amended Guaranty
Agreement.
(e) Guarantor has reviewed, with counsel of its choice, and consents
to the Loan Documents. Guarantor shall be regarded, and shall be in the
same position, as principal debtor with respect to all of the Guaranteed
Obligations.
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(f) This Second Amended Guaranty Agreement shall remain in full force
and effect without regard to future changes and conditions, including
change of law or any invalidity or irregularity with respect to any of the
Obligations or with respect to the execution and delivery or performance of
any of the Loan Documents; and any attempted revocation of this Second
Amended Guaranty Agreement by Guarantor shall be ineffective, unless
otherwise expressly provided by law, and, if applicable law provides that
any such revocation is effective, such revocation shall be effective only
if made in writing and only as to Advances thereafter made by Lender and
shall not affect the continuing liability hereunder of the Guarantor for
all of the Guaranteed Obligations theretofore incurred by, accrued on
account of or arising with respect to the Borrower. This Second Amended
Guaranty Agreement is in addition to, and not in substitution for, or in
reduction of any other guarantees in favor of Lender.
(g) The Guarantor is fully aware of the financial and other condition
of the Borrower and the Resorts. The Guarantor is executing and delivering
this Second Amended Guaranty Agreement based solely upon its own
independent investigation and in no part upon any representation or
statement of Lender or any agent or representative thereof with respect
thereto. The Guarantor is in a position to obtain and hereby assumes whole
responsibility for obtaining any additional information concerning
Borrower's or the Resorts' financial or other condition as the Guarantor
may deem material to its obligations hereunder, and the Guarantor is not
relying upon, nor expecting the Lender to furnish, any information
concerning the Borrower's or the Resorts' financial or other condition. The
Guarantor hereby knowingly accepts the full range of risk encompassed
within a contract of "continuing guarantees", which risk includes, without
limitation, the possibility that the Borrower will contract additional
indebtedness for which the Guarantor will be liable hereunder after the
Borrower's financial condition or ability to pay when due its lawful debts
has deteriorated.
(h) Guarantor acknowledges receipt of good, valuable and sufficient
consideration for its entering into and performing under this Second
Amended Guaranty Agreement. Guarantor has an independent obligation
hereunder given in consideration of Lender's agreements pursuant to the
Loan Documents, from which the Guarantor derives continuing material value
and benefit. The Guarantor subjects its separate property to its
obligations hereunder, and agree that recourse may be had against such
separate property to enforce the Guarantor's obligations hereunder.
3. Certain Waivers by Guarantor. The Guarantor irrevocably waives, to the
fullest extent permitted by law: (a) notice of acceptance hereof, notice of the
extension of credit or the making of Advances from time to time, and of the
creation, existence or acquisition of any of the Guaranteed Obligations; (b)
notice of the amount of the Guaranteed Obligations, or any other indebtedness of
the Borrower to the Lender from time to time outstanding; subject, however, to
Guarantor's right to make written inquiry of the Lender to ascertain the amount
of the Guaranteed Obligations or such other indebtedness from time to time; (c)
notice of adverse change in the Borrower's financial condition or any other fact
which might increase Guarantor's risk; (d) presentment, demand and protest and
notice of presentment, dishonor, notice of intent to accelerate, notice of
acceleration, protest, default, nonpayment, maturity, release, compromise,
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settlement, extension or renewal of any or all of the Loan Documents, or any
other instrument, document or agreement; (e) notice of default and all other
notices to which Guarantor might otherwise be entitled; (f) all rights to notice
and a hearing prior to the taking of possession or control by Lender of, or to
Lender's replevy, attachment or levy upon the Collateral or any bond or security
which might be required by any court prior to allowing Lender to exercise any of
its remedies; (g) the benefit of all valuation, appraisal and exemption laws;
(h) the benefit of all provisions of law which are or might be in conflict with
the terms of this Second Amended Guaranty Agreement or any of the other Loan
Documents; and (i) any defense arising by reason of the cessation from any cause
whatsoever of any of the Obligations of Borrower.
Guarantor agrees that any notice or directive given at any time to the
Lender which is inconsistent with the waivers contained in this Section shall be
void and may be ignored by the Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Second Amended
Guaranty Agreement for the reason that such pleading or introduction would be at
variance with the written terms of this Second Amended Guaranty Agreement,
unless Lender has specifically agreed otherwise in writing.
For purposes of the provisions contained herein, Guarantor hereby expressly
waives the benefits of "orden, excusion y division" and of prior judgement,
levy, execution and other rights provided for in Articles 2814, 2815, 2817,
2818, 2820, 2821, 2823, 2827 and 2836 of the Civil Code of the Federal District
of Mexico, and the corresponding articles of the Civil Code of the States of
Xxxxxxxx Roo, Jalisco, and Baja California Sur or of the other states of Mexico,
which articles are not reproduced herein by express declaration of Guarantor
that the contents of said articles are known to it. Guarantor also hereby
irrevocably and expressly waives its rights under the benefits of Articles 2846,
2847, 2848 and 2849 of the Civil Code for the Federal District of Mexico, and
the corresponding articles of the Civil Code of the States of Xxxxxxxx Roo,
Jalisco, and Baja California Sur or of the other states of Mexico, which
articles are not reproduced herein by express declaration of Guarantor that the
contents of said articles are known to it.
4. Waiver of Subrogation, Reimbursement, Etc.
(a) In addition to other waivers contained herein, the Guarantor
irrevocably waives all rights it may have at law or in equity (including
without limitation any law subrogating the Guarantor to the rights of
Lender) to seek contribution, subrogation, indemnification or any other
form of reimbursement from the Borrower, any other guarantor, or any other
Person now or hereafter primarily or secondarily liable for any of the
Obligations, and all claims or potential claims related thereto, in a
bankruptcy proceeding, or other proceeding under any of the Debtor Relief
Laws, or otherwise, for or in connection with any disbursement made by the
Guarantor under or in connection with this Second Amended Guaranty
Agreement, or otherwise; and Guarantor further agrees not to contest such
waiver in any proceeding; provided, however, that if and to the extent, if
any, that a court of competent jurisdiction would deem the Guarantor to
retain any such rights of contribution, indemnification, subrogation or
reimbursement
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notwithstanding such express waiver, all such rights and all claims based
thereon, now or hereafter in existence and however incurred or acquired,
shall be junior and subordinate in right of payment to the prior and full
indefeasible payment and performance in favor of Lender of the Obligations,
and Guarantor agrees that all such rights and all claims based thereon
shall be inchoate, and shall not vest in the Guarantor or be exercisable
until the date which is at least thirteen (13) calendar months from the
last date on which all of the Guaranteed Obligations shall have been paid
in full to Lender and finally discharged. If any payment shall be made to
Guarantor on account of such reimbursement, contribution, indemnification
or subrogation rights, if any, at any time before the passage of at least
thirteen (13) calendar months from the last date on which all of the
Guaranteed Obligations are paid in full and finally discharged, each amount
so paid shall be received and held by Guarantor in trust for Lender, and
shall forthwith be paid to Lender to be credited and applied against the
Obligations, whether matured or unmatured.
(b) To the extent, if any, that notwithstanding the waiver of
subrogation contained in Section 4, Guarantor acquires or is deemed to hold
by way of subrogation any rights of Lender against Borrower, any other
guarantor, or any other Person, the rights of Lender to which Guarantor may
be subrogated, if any, shall be accepted by Guarantor "as is" and without
any representation or warranty of any kind by Lender, express or implied,
with respect to the legality, value, validity or enforceability of any of
such rights, or the existence, availability, value, merchantability or
fitness for any particular purpose of any Collateral, and shall be without
recourse to Lender.
5. Demand by Lender. Upon an Event of Default under any of the Loan
Documents, all of the Guaranteed Obligations shall be due and payable by the
Guarantor to Lender, immediately upon Lender's written demand therefor. Payment
by Guarantor shall be made to Lender in immediately available funds at 00
Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000; Attention: Collections, or
at any other address in Providence, Rhode Island, Hartford, Connecticut, or
otherwise that may be specified in writing from time to time by Lender. If
acceleration of the time for payment of the Obligations is stayed, or demand for
payment thereof is precluded upon injunction or the bankruptcy, insolvency or
reorganization of Borrower or Lender is otherwise stayed, enjoined or precluded
from exercising its rights and remedies pursuant to the Loan Documents, then,
the entire amount of the Guaranteed Obligations shall nevertheless be due and
payable by Guarantor to Lender on demand by Lender. If payment in full of the
Guaranteed Obligations is not made to Lender within ten (10) days after demand,
the entire amount of the outstanding Guaranteed Obligations shall bear interest
at the Default Rate specified in the Note Receivable Promissory Note; provided,
however, that notwithstanding any provision hereof or in any other Loan Document
to the contrary, the parties intend that any interest for which the Guarantor is
charged or is obligated to pay shall not exceed the maximum rate or amount of
interest permitted under applicable law.
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6. Enforcement of Guaranty. In no event shall Lender have any obligation to
proceed against Borrower, any other guarantor, or any other Person, or any
Collateral before seeking satisfaction from Guarantor. Lender may proceed, prior
or subsequent to, or simultaneously with, the enforcement of Lender's rights
hereunder, to exercise any right or remedy which it may have against any
Collateral as a result of any Lien it may have as security for the Obligations,
or any other right it may have under the Loan Documents, or against any other
guarantor of the Obligations, for all or any portion of the Guaranteed
Obligations.
7. Benefit of Guaranty. The provisions of this Second Amended Guaranty
Agreement are for the benefit of Lender and its successors and assigns, and
nothing herein contained shall impair, as between Borrower, on the one hand, and
Lender, on the other hand, the Obligations of Borrower under the Loan Documents.
Nothing shall discharge or satisfy the liability of the Guarantor hereunder
except the full, final and indefeasible payment and performance of the
Guaranteed Obligations.
8. Modification of Loans, etc. At any time and from time to time, without
the consent of, or notice to Guarantor, without incurring any liability to
Guarantor and without impairing, limiting or releasing the obligations of
Guarantor under this Agreement, Lender may by action or inaction:
(a) compromise, settle, change or extend the manner, place or terms of
payment of, or renew or alter all or any portion of, any Obligations;
(b) take any action under or with respect to the Loan Documents in the
exercise of any remedy, power or privilege contained therein or available
to Lender at law, equity or otherwise, or waive or refrain from exercising
any such remedies, powers or privileges;
(c) amend or modify in any manner whatsoever any of the Loan Documents
(except this Second Amended Guaranty Agreement) notwithstanding that such
amendment or modification may result in the Obligations exceeding the
aggregate principal sums set forth in the Loan Documents;
(d) extend, release or waive the Borrower's or any other Person's
performance of, or compliance with, any term, covenant or agreement on its
part to be performed or observed under the Loan Documents, or waive such
performance or compliance or consent to a failure of, or departure from,
such performance or compliance;
(e) sell, retain, exchange, release, dispose of, or otherwise deal
with, any Collateral securing any Obligations;
(f) refuse or fail to enforce any rights or remedies under any Loan
Documents or other instrument or agreement evidencing or securing the
Obligations or waive or modify the obligations of, or extend the time for
performance of, or release, any Person (other than Guarantor) who may be
liable in any manner for the payment or collection of any amounts owed by
Borrower to Lender; or
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(g) apply any sums by whomever paid or however realized to any amounts
owing by Borrower or Guarantor to Lender in such manner as Lender shall
determine in its discretion.
9. Grant of Lien. As security for the payment and performance of the
Guaranteed Obligations, for value received, the Guarantor grants to Lender a
Lien upon, security interest in, and, where applicable, right of set-off
against, any and all deposits, credits, and any and all other property of
Guarantor, now or at any time with or in the possession of or in transit to
Lender.
10. No Marshalling. Guarantor specifically consents and agrees that Lender
shall be under no obligation to Xxxxxxxx any assets in favor of Guarantor or
against or in payment of any or all of the Guaranteed Obligations.
11. Subordination. The Guarantor hereby agrees that, to the extent
permitted by Section 4.08 of the Indenture, effective immediately and without
notice upon the occurrence of an Event of Default, any and all present and
future debts and obligations of the Borrower to Guarantor, or of Guarantor to
any other guarantor, and any liens, security interests, claims and rights
related thereto (collectively, the "Subordinated Indebtedness"), shall
automatically and without the need for any further action by Lender, Borrower or
Guarantor, be waived and postponed in favor of and subordinated to the full,
final and indefeasible payment of the Obligations. As additional security for
this Second Amended Guaranty Agreement and Guarantor's obligations hereunder,
but only to the extent permitted by Section 4.08 of the Indenture, Guarantor,
for value received, hereby unconditionally assigns to Lender and grants to
Lender a security interest in all of Guarantor's right, title, and interest in
and with respect to the Subordinated Indebtedness. Notwithstanding the
foregoing, for so long as no Event of Default then exists or would result from
the making or receipt of the Subordinated Indebtedness, and for so long as the
maker of any payments with respect to the Subordinated Indebtedness is not then
insolvent or would not be rendered insolvent as a result of making such payment,
the Guarantor may make or receive, as the case may be, payments with respect to
the Subordinated Indebtedness pursuant to regularly scheduled payment terms as
may be approved in advance by Lender in writing.
Guarantor will refrain from taking any action which is in any way
inconsistent with or in derogation of this subordination or of the rights of
Lender hereunder and covenant to perform such further acts as necessary or
appropriate to give effect to this subordination. Without limiting the
generality of the foregoing, Guarantor will not assign any portion of the
Subordinated Indebtedness, except expressly subject to the terms of this Second
Amended Guaranty Agreement; and Guarantor shall cause all evidence of the
Subordinated Indebtedness to set forth the provisions hereof or to bear a legend
that it is subject hereto.
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12. Representations and Warranties. Guarantor represents and warrants to
Lender as follows:
(a) that Guarantor shall, through certain of its subsidiaries in which
Guarantor holds a majority ownership interest, continue to own a majority
ownership interest in each of the Borrower entities,
(b) This Second Amended Guaranty Agreement has been executed and
delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable in accordance with its terms;
(c) The execution, delivery and performance of this Second Amended
Guaranty Agreement does not and will not violate any provision of law or
administrative regulation, any order of any court or other agency of
government, any provision of any indenture, agreement or other instrument
to which Guarantor is a party (specifically including the FINOVA Loan
Agreement and the Indenture), or by which Guarantor or any of the
Guarantor's properties or assets is bound, and is not and will not be in
conflict with, result in a breach of or constitute (with due notice and/or
lapse of time) a default under any such indenture, agreement or other
instrument, and is not and will not result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of Guarantor except as expressly provided in this
Second Amended Guaranty Agreement;
(d) Except as disclosed on Exhibit A hereto, there are no actions,
suits or proceedings at law or in equity or by or before the Mexican
regulatory authorities or any other governmental or administrative
instrumentality or arbitration board or other agency or any investigation
of any of Guarantor's affairs or any of the Guarantor's properties or
rights which involve the possibility of materially and adversely affecting
the Resorts, or all or any portion of the Collateral, or other properties,
businesses, profits, prospects or conditions of Guarantor, or if adversely
determined, which would materially affect Guarantor's ability to perform
its obligations under this Second Amended Guaranty Agreement;
(e) No Default or Event of Default exists under any Loan Document, and
Guarantor is not in default in any material respect under any agreement or
other instrument to which it is a party or by which it may be bound,
specifically including the FINOVA Loan Agreement and the Indenture;
(f) Guarantor does not require, nor does the identity or nature of
Guarantor's businesses or properties, or any relationship between Guarantor
and the Borrower or any other Person or any circumstance in connection with
the execution, delivery or performance of this Second Amended Guaranty
Agreement, require, any consent, approval or authorization of, or filing,
registration or qualification, with, any governmental or administrative
authority on the part of Guarantor, as a condition to the execution,
delivery or performance of this Second Amended Guaranty Agreement;
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(g) All tax returns required to be filed as of the date hereof by
Guarantor in any jurisdiction have been filed, and all taxes, assessments,
fees and other governmental charges against Guarantor or upon any of its
property, income or franchises, which are due and payable as of the date
hereof, have been paid;
(h) As of the date of this Second Amended Guaranty Agreement and after
giving effect hereto and to the full potential Obligations which the
Borrower could incur under the Loan Documents, and the full potential
extent of the Guaranteed Obligations, the fair saleable value of
Guarantor's assets exceeds its liabilities, Guarantor is meeting current
liabilities as they mature, Guarantor has sufficient capital invested in
the Resorts and any other business in which it is engaging, and Guarantor
has not incurred debts beyond its ability to pay same as they mature;
(i) The financial statements of Guarantor previously delivered to the
Lender are true and correct in all material respects, fairly present
Guarantor's financial condition, and no material adverse change has
occurred in the financial conditions reflected therein since the respective
dates thereof;
(j) As of the date of this Second Amended Guaranty Agreement, the
Guarantor's obligations hereunder are not subject to any claims,
counterclaims, offsets or defenses against Lender or Borrower; and
(k) The Guarantor, on behalf of itself and its Affiliates, represents
and warrants to Lender that the Loan is "Permitted Debt" (as such term is
defined in the Indenture) and that as of the date hereof there exists no
Default or Event of Default (as the foregoing two terms are defined in the
Indenture) under the Indenture. Guarantor covenants with Lender that (a) as
and when required by the Indenture, the Guarantor shall cause the Issuers
(as such term is defined in the Indenture) to supply the Lender with true
and complete copies of all reports, certifications, notices or demands
given by the Issuers under the Indenture (including, but not limiting the
generality of the foregoing, materials required by Sections 4.03, 4.04,
4.21, 7.06, and Article 8 of the Indenture) and (b) it will not amend or
modify the Indenture without the prior written consent of Lender and any
such amendment or modification to the Indenture made without the prior
written consent of Lender shall not be binding upon Lender. Guarantor
further agrees to cause Issuer to promptly (but in any event within three
(3) days after Issuer's receipt of same) supply Lender with a true and
complete copy of any notice sent to Issuers under Section 6.01 of the
Indenture, or any other notice alleging a default by the Issuer under the
Indenture.
13. Certain Financial Matters.
(a) Guarantor shall immediately give Lender written notice of any
material adverse change in its financial condition, including but not
limited to, litigation commenced, tax liens filed, defaults claimed under
any indebtedness or borrowed money, or proceedings commenced pursuant to
any Debtor Relief Laws with respect to Guarantor, or an event of default
under either the FINOVA Loan or the Indenture.
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(b) Until payment in full of all the Guaranteed Obligations, Guarantor
will, at its expense, within one hundred twenty (120) days after the end of
each calendar year, furnish Lender with copies of federal (and if
applicable, state) tax returns (or, if not filed within such one hundred
twenty (120) day period, then, when filed) and personal financial
statements, prepared in accordance with United States generally accepted
accounting principles on a basis consistently applied or in a manner
acceptable to Lender. Additionally, Guarantor will, at its expense,
execute, acknowledge and deliver all such instruments and take all such
action as Lender from time to time may reasonably request in order to
ensure to Lender the benefits of this Second Amended Guaranty Agreement;
provided any such instruments and actions do not impose any material
obligations on Guarantor not otherwise contemplated herein.
14. No Waiver. No forbearance or delay on Lender's part in declaring any
default, in giving any notice or making any demand, or in exercising or
enforcing any right hereunder or under any Loan Document, shall constitute or
give rise to a waiver or release by Lender, or limit or impair Lender's right to
declare any default, give any notice or make any demand, or exercise or enforce
any right or remedy hereunder or under any of the Loan Documents, without notice
or demand, or prejudice Lender's rights as against Guarantor in any respect.
15. Assignment. Lender may assign, participate or transfer any of its
rights under this Second Amended Guaranty Agreement and any instrument
evidencing all or any part of the Obligations, and the holder of such rights or
instruments shall nevertheless be entitled to the benefits of this Second
Amended Guaranty Agreement. No such assignment shall increase or diminish
Guarantor's obligations hereunder. The consent of Guarantor shall not be
required for any such assignment and failure to give notice shall not affect the
validity or enforceability of any assignment of this Second Amended Guaranty
Agreement or Lender's rights, or subject Lender to any liability. If Lender
shall elect to effectuate an assignment, participation or transfer as
contemplated herein, then Guarantor shall not be obligated to pay any expense in
connection with any such assignment, participation or transfer.
16. Miscellaneous.
(a) This Second Amended Guaranty Agreement shall be binding upon
Guarantor and its heirs, successors and assigns, and shall inure to the
benefit of, and be enforceable by, Lender and its successors and assigns.
None of the terms or provisions of this Agreement may be waived, altered,
modified or amended, except by a written instrument duly signed for and on
behalf of Lender and Guarantor.
(b) This Second Amended Guaranty Agreement may be executed in any
number of separate counterparts, each of which shall, collectively and
separately, constitute one agreement.
(c) The use of any gender herein shall include all genders. The
singular shall include the plural and vice versa.
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(d) All notices or demands hereunder shall be in writing and shall be
sent by registered or certified mail, return receipt requested, or by a
nationally recognized overnight courier service. Notices shall be deemed
received when deposited in a United States post office mail box or with
such nationally recognized courier service, postage prepaid, properly
addressed to the Guarantor, or the Lender, as the case may be, at the
respective mailing addresses set forth in the Loan Agreement, or to such
other addresses as the Guarantor or the Lender may from time to time
specify in writing.
(e) The section titles contained in this Second Amended Guaranty
Agreement are intended only to provide convenient reference and shall be
without substantive meaning or content of any kind whatsoever.
17. Material Inducement. Guarantor and Lender acknowledge and agree that
the Guarantor's waivers and consents contained in this Second Amended Guaranty
Agreement are a material inducement to Lender to make the Loan and to engage in
the transactions contemplated by the Loan Documents, and that, but for this
Second Amended Guaranty Agreement and such waivers and consents, Lender would
decline to make the Loan.
18. Expenses. Guarantor agrees to pay all expenses incurred by Lender in
connection with the evaluation, protection, assertion, or enforcement of its
rights under this Second Amended Guaranty Agreement, including, without
limitation, court costs, audit expenses, collection charges, and attorneys' and
paralegals' fees and disbursements, including, but not limited to costs of any
appeal.
19. Relief from Automatic Stay, etc. To the fullest extent permitted by
law, in the event the Borrower or Guarantor shall make application for or seek
relief or protection under the United States federal bankruptcy code
("Bankruptcy Code") or any other United States or Mexican Debtor Relief Laws, or
in the event that any involuntary petition is filed against the Borrower or
Guarantor under such Code or other Debtor Relief Laws, and not dismissed with
prejudice within forty-five (45) days, the automatic stay provisions of Section
362 of the Bankruptcy Code are hereby modified as to Lender to the extent
necessary to implement the provisions hereof permitting set-off and the filing
of financing statements or other instruments or documents; and Lender shall
automatically and without demand or notice (each of which is hereby waived) be
entitled to immediate relief from any automatic stay imposed by Section 362 of
the Bankruptcy Code or otherwise, on or against the exercise of the rights and
remedies otherwise available to Lender as provided in the Loan Documents. In
addition, in the event relief is sought by or against Guarantor under the
Bankruptcy Code, Guarantor agrees not to seek, directly or indirectly, in any
ensuing bankruptcy proceeding, any extension of the exclusivity period otherwise
available to a debtor under the Bankruptcy Code, including, without limitation,
the exclusivity period provided for under Section 1121(b) of the Bankruptcy
Code. Guarantor agrees not to contest the validity or enforceability of this
Section.
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20. Waiver of Jury Trial. TO THE FULLEST EXTENT NOT PROHIBITED BY
APPLICABLE LAW WHICH CANNOT BE WAIVED, THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL
BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND OR CLARIFY ANY RIGHT,
POWER, REMEDY OR DEFENSE ARISING OUT OF OR RELATED TO THIS SECOND AMENDED
GUARANTY AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN, WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE, OR WITH
RESPECT TO ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY; AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A JUDGE AND NOT BEFORE A JURY. THE GUARANTOR
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, GUARANTOR HEREBY CERTIFIES THAT NO
REPRESENTATIVE OR AGENT OF LENDER, INCLUDING LENDER'S COUNSEL, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE GUARANTOR
ACKNOWLEDGES THAT THE PROVISIONS OF THIS SECTION ARE A MATERIAL INDUCEMENT TO
LENDER'S ACCEPTANCE OF THIS SECOND AMENDED GUARANTY AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
21. Governing Law. This Second Amended Guaranty Agreement and the
obligations arising hereunder shall be governed by, and construed in accordance
with, the laws of the State of Rhode Island (exclusive of its choice-of-laws
principles) applicable to contracts made and performed in such state, and any
applicable laws of the United States of America and the Guarantor hereby
expressly submits to the jurisdiction of such courts for the purpose of any such
legal proceedings and expressly waives for such purpose any other preferential
jurisdiction by reason of present or future domicile or otherwise. Guarantor
consents to personal jurisdiction before the Circuit Court in and for Providence
County, Rhode Island and the United States District Court for the District of
Rhode Island. Guarantor waives any objection which they may now or hereafter
have to venue in Providence County, Rhode Island of any suit, action or
proceeding arising out of or relating to this Second Amended Guaranty Agreement
or the obligations created hereunder and further waive any claim that Providence
County, Rhode Island is not a convenient forum for any such suit, action or
proceeding. Notwithstanding anything to the contrary provided in this Second
Amended Guaranty Agreement or any other Loan Document, to the greatest extent
permitted under United States and Mexican law, Guarantor expressly waives any
and all claims to jurisdiction in Xxxxxx.
00
00. Severability, Etc. If any provision of this Second Amended Guaranty
Agreement or the application thereof to any Person or circumstance shall, to any
extent, be illegal, invalid or unenforceable, the remainder of this Second
Amended Guaranty Agreement or the application of such provision to Persons or
circumstances other than those as to which it is illegal, invalid or
unenforceable, as the case may be, shall not be affected, and each provision of
this Second Amended Guaranty Agreement shall be legal, valid and enforceable to
the fullest extent permitted by law. The illegality, invalidity or
unenforceability of any provision of this Second Amended Guaranty Agreement in
any jurisdiction shall not affect the legality, validity or enforceability
thereof in any other jurisdiction. Any right or remedy granted herein or in any
Loan Document is separate, distinct and cumulative and not exclusive of any
other right or remedy granted herein or in any Loan Document or provided by law
or in equity; and all of the same may be exercised concurrently, independently
or successively by Lender in its discretion. Any forbearance on the part of
Lender in exercising any right or remedy shall not constitute a waiver of or
preclude the exercise of such right or remedy. Lender shall not be deemed by any
act or omission to have waived any right or remedy or any default unless such
waiver is in writing and signed by Lender, and then only to the extent
specifically set forth in such writing.
23. No Defaults. The Guarantor hereby acknowledges and represents that
Lender has complied fully with all of its obligations under the Loan Documents
through the date hereof and is not currently in default thereunder.
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IN WITNESS WHEREOF, the Guarantor has caused this Second Amended
Guaranty Agreement to be duly executed as of the first date appearing above.
GUARANTOR:
Raintree Resorts International, Inc.,
a Nevada corporation
Xxxxxx X. Xxxxxxx By: Xxxxxxx X. Xxxx
---------------- -------------------------
Witness Name: Xxxxxxx X. Xxxx
[SEAL]
00
XXXXX XX Xxxxx)
------
XXXXXX XX Xxxxxx)
-------
The foregoing instrument was acknowledged before me this 29th of
December, 2000, by Xxxxxxx X. Xxxx, as
Attorney in fact of Raintree Resorts International, Inc., a Nevada
corporation, on behalf of the corporation. He/She is personally known to me.
Xxxxx X. Xxxxxxx
--------------------------
Notary Public
(SEAL)
My Commission Expires: February 28, 2004
-----------------
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EXHIBIT A
PENDING LITIGATION
NONE.
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