[TO BE RATIFIED BEFORE A NOTARY PUBLIC]
AMENDMENT AGREEMENT ENTERED INTO ON JUNE 1, 2001, TO THE PROMISSORY NOTES PLEDGE
AGREEMENT ("AGREEMENT"), DATED NOVEMBER 23, 1999 BY AND AMONG CR RESORTS CANCUN,
S. DE X.X. DE C.V. , CR RESORTS LOS CABOS, S. DE X.X. DE C.V., CR RESORTS PUERTO
VALLARTA, S. DE X.X. DE C.V., CR RESORTS CABOS TIMESHARE TRUST, S. DE X.X. DE
C.V., CR RESORTS CANCUN TIMESHARE TRUST, S. DE X.X. DE C.V., CR RESORTS PUERTO
VALLARTA TIMESHARE TRUST, S. DE X.X. DE C.V., (COLLECTIVELY THE "PLEDGORS") AND
TEXTRON FINANCIAL CORPORATION (THE "PLEDGEE").
R E C I T A L S
I. The representatives of the Pledgors hereby declare as follows:
A. The Pledgors are companies duly organized and existing under the laws
of the United Mexican States ("Mexico"), and have all the necessary
authorizations, corporate, governmental or otherwise to enter into
this Agreement in their capacity as Pledgors.
B. The Pledgors have the necessary authority for the execution and
delivery hereof and performance hereunder in accordance with its
organizational documents.
C. On November 23, 1999 the Pledgors and Corporacion Mexitur, S. de X.X.
de C.V. ("Mexitur"), in their capacity of Borrowers, entered into that
certain the Loan and Security Agreement (the "Textron Loan Agreement")
with Textron Financial Corporation as Lender and Raintree Resorts
International, Inc. as Guarantor, for the making of loans not to
exceed an outstanding balance of US$10,000,000.00 (Ten million dollars
00/100) (the "First Loan").
D. On November 23, 1999 the original Pledgors and the Pledgee entered
into a Promissory Notes Pledge Agreement (the "Promissory Notes Pledge
Agreement ") pursuant to which Pledgors have pledged in favor of
Pledgee the promissory notes described in Exhibit "A" (the "Original
Notes"), which Original Notes document the payment obligations of the
Pledgors as obligors under certain agreements for the rendering of
time-share services (the "Original Interval Contracts").
E. The Pledgors, Raintree Resorts International Inc., (the "Guarantor"),
and the Pledgee are parties to that certain Loan Agreement and to that
certain Loan Modification Agreement dated as of November 20, 2000 (the
"First Modification Agreement"), pursuant to which Pledgee agreed to
make a loan to Borrower in the maximum principal amount at any time of
US$13,000,000.00 (Thirteen Million Dollars 00/100), as amended (the
"Loan") to be guaranteed by the Guarantor, all pursuant to the terms,
provisions, and conditions set forth in the Loan Agreement, the First
Modification Agreement, and the other Textron Loan Documents, as such
term is defined in the Textron Loan Agreement; and
G. On December 29, 2000 the Pledgors, Mexitur, Promotora Xxxxx Xxxx, S.
de X.X. de C.V. and Xxxxx Xxxx Resort, S. de X.X. de C.V., in their
capacity of Borrowers, entered into that certain Second Loan
Modification Agreement to the Loan Agreement (the "Second Modification
Agreement") pursuant to which Pledgee agreed to extend to the
Borrowers the maximum principal amount of the Loan at any time to
US$18,000,000.00 (Eighteen Million Dollars 00/100) to be guaranteed by
the Guarantor, all pursuant to the terms, provisions, and conditions
set forth in the Textron Loan Agreement, the First Modification
Agreement, and the Second Modification Agreement (together the "Loan
Agreement") and the other Loan Documents, as such term is defined in
the Loan Agreement;
H. Neither the execution and delivery by the Pledgors of this Agreement
nor the performance of their obligations hereunder, will contravene or
conflict with, or result in a breach or violation of applicable law,
their organization documents, the FINOVA Loan Agreement, the Indenture
or the Mirror Notes (as such terms are defined in the Loan Agreement).
I. Pledgors obligations hereunder constitute their valid and binding
obligations enforceable against them jointly and severally in
accordance with their terms.
J. The representatives of the Pledgors have all necessary powers and
authority to execute this Agreement, which powers and authority have
not been revoked, limited or otherwise modified.
K. The New Existing Notes (as defined herein-below) are free and clear of
all encumbrances and limitations of ownership whatsoever, Pledgors are
in compliance of all of their respective obligations under the New
Interval Contracts (as defined herein-below) and have the authority to
encumber the New Existing Notes (as defined herein-below) as provided
for herein.
II. The representatives of the Pledgee and the Pledgors declare that, in
compliance with the terms of the Loan Agreement and in order to secure
the Obligations (the "Secured Obligations"), Pledgors wish to hereby
create in favor of Pledgee a first priority security interest in the
New Existing Notes and to agree to create a first priority security
interest in the Future Notes as set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
hereby agree as set forth below.
C L A U S E S
ONE. Terms and Principles of Construction. (a) Capitalized terms used and
not otherwise defined in this Agreement shall have the meanings ascribed to them
in the Promissory Note Pledge Agreement, or the Loan Agreement.
(b) The following Principles of Construction shall apply for purposes
of this Agreement.
(i) The meanings set forth for defined terms in this Clause or
elsewhere in this Agreement shall be equally applicable to both the
singular and plural forms of the terms defined.
(ii) Unless otherwise specified, all references in this Agreement
to Clauses, Exhibits and paragraphs are to Clauses, Exhibits and
paragraphs in or to this Agreement.
(iii) The headings of the Clauses in this Agreement are included
for convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
(iv) Any reference herein to any Person, whether identified under
such term or otherwise, shall be construed to include such Person's
successors and permitted assigns.
(v) Any reference to any agreement, contract or document herein
shall be construed to include such agreement, contract or document as
the same may be amended, supplemented, restated or otherwise modified
from time to time.
TWO. New Existing Notes.
(a) Pursuant to the Second Modification Agreement whereunder Pledgee
agreed to extend to the Pledgors the maximum principal amount of the Loan
at any time
up to US$18,000,000.00 (Eighteen Million Dollars 00/100) to be guaranteed
by the Guarantor, all pursuant to the terms of the Loan Agreement, as
amended by the First Modification Agreement and Second Modification
Agreement and the other Loan Documents, and in order to jointly and
severally secure the full and punctual payment and performance of the
Secured Obligations, the Pledgors hereby endorse in pledge in favor of the
Pledgee and grant to the Pledgee a first priority lien on and security
interest over the New Existing Notes (the "New Existing Notes") as
described in Exhibit "B" hereto, together with all rights, titles,
interests, powers, privileges and preferences pertaining or incidental
thereto.
(b) The pledge hereby created is granted as security only and shall
not subject the Pledgee to, or transfer or in any way affect or modify, any
obligation or liability of Pledgors with respect to any of the New Existing
Notes or the New Existing Interval Contracts (the "New Existing Interval
Contracts") to which they relate and described in Exhibit "B" hereto, or
except as otherwise provided in this Agreement or to the Pledge Note
Agreement, or any transaction in connection therewith.
(c) The Pledgors hereby endorse in pledge and deliver to the Pledgee
the New Existing Notes as listed in Exhibit "B", and the Pledgee hereby
takes delivery and acknowledges receipt of, the New Existing Notes, in
terms and for all purposes provided for by Article 334 section II of the of
the General Law of Credit Instruments and Transactions of Mexico. In
addition, within 60 (sixty) days following the date hereof the Pledgors
shall deliver to the Pledgee copy of the notice as to the creation of the
pledge sent to each obligor under the New Existing Notes, substantially in
the form attached hereto as Exhibit "C" (the "Notice"). Failure by the
Pledgors to deliver such Notice to the Pledgee with the acknowledgement by
each obligor within the 60 (sixty) day period mentioned above shall cause
those New Existing Notes to which the Notice and the acknowledgement where
not obtained shall not be considered Eligible Notes Receivables (as such
term is defined in the Loan Agreements) and shall be replaced as provided
in the Loan Agreement unless the respective obligor under any of the New
Existing Notes has made one or more payment thereunder into the lockbox
account referred to in the Notice.
(d) The Pledgors are the legal holders of the New Existing Notes and
have the unqualified right to pledge and grant a security interest therein
as provided in the Promissory Note Pledge Agreement, without the consent of
any other person or entity which has not been obtained; they will be the
legal holders of the Future Notes, and shall have the unqualified right to
pledge and grant a security interest therein as provided in the Promissory
Note Pledge Agreement without the consent of any other person or entity
(other than the Acknowledgement to be obtained from each Obligor thereunder
which has been obtained or will be obtained, as the case may be);
THREE. Interpretation
Except as otherwise provided herein, the pledge hereby created by the
Pledgors in favor of Pledgee shall be regulated by the provisions of the
Promissory Notes Pledge Agreement as amended by the First Modification to the
Promissory Pledge Agreement and this Second amendment
FOUR. Assignability.
This Agreement shall be binding upon and inure to the benefit of each of
the Pledgors and the Pledgee and their respective successors. The Pledgors may
not assign any of its rights or obligations hereunder without the prior written
consent of the Pledgee. The Pledgee shall have the right to assign its rights
hereunder pursuant to that provided under the Loan Agreement. Due to the
ancillary nature of this Agreement, the parties hereto expressly agree that the
pledge interest granted herein shall be automatically transferred upon
endorsement or assignment of the New Existing Notes.
FIVE. Novation.
Neither the execution hereof nor the pledge hereunder constitutes a
novation, amendment, payment, satisfaction or extinction of the Pledgors
Obligations. For all purposes hereof, the Pledgors acknowledge that the Pledge
Agreement is and will continue to be, as of the date of the hereof, a valid and
perfected security interest in the Existing Notes and the New Existing Notes.
SIX. Amendments.
No amendment, modification, termination, or waiver of any provision of this
Agreement, shall be effective unless the same shall be in writing and signed by
the Pledgee and the Pledgors.
Any reference made to the New Existing Notes in this Agreement, the Loan
Agreement or the Promissory Notes Pledge Agreement shall include and be
understood as the Existing Notes from the Pledgors and the New Existing Notes
endorsed under this Agreement and listed in Exhibit "B" hereto.
IN WITNESS WHEREOF, the parties hereto have themselves executed or caused
this Agreement to be executed by their duly authorized representatives as of the
date first above written.
The Pledgors The Pledgee
CR Resorts Cancun, Textron Financial Corporation
S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx By:
-------------------- ----------------
Name: Xxxxx X. Tcuker Name:
------------------- ----------------
Title: Attorney-in-fact Title:
---------------- ----------------
CR Resorts Los Cabos,
S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
CR Resorts Puerto Vallarta,
S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
CR Resorts Cancun Timeshare
Trust, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
CR Resorts Los Cabos Timeshare
Trust, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
CR Resorts Puerto Vallarta Timeshare
Trust, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
Acknowledged and Agree
Corporacion Mexitur, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
Promotora Xxxxx Xxxx, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
Xxxxx Xxxx Resort, S. de X.X. de C.V.
By: /S/ Xxxxx X. Xxxxxx
--------------------
Name: Xxxxx X. Xxxxxx
---------------
Title: Attorney-in-fact
----------------
EXHIBIT "A"
LIST OF ORIGINAL EXISTING NOTES
DESCRIPTION
[TO BE PROVIDED BY THE PLEDGORS]
EXHIBIT "B"
LIST OF THE NEW EXISTING NOTES
DESCRIPTION
[TO BE PROVIDED BY THE PLEDGORS]
[EXHIBIT "C"
MEMBER NOTICE AND ACKNOWLEDGEMENT
Date:
Mr. _______________
_______________
Dear Club Xxxxxx Member:
Pursuant to our recently established credit relationship with
Textron Financial Corporation, we are required to give you the following notice
with respect to your vacation ownership loan from Club Xxxxxx Resorts. Please
note that none of your rights and privileges as a Club Xxxxxx member have
changed. All of the services, amenities and wonderful vacation experiences you
have come to expect from Club Xxxxxx will continue under the same conditions at
the time you purchased your Club Xxxxxx membership. The notice is as follows:
In connection with that certain Contract of Purchase-Sale of
Membership (the "Interval Contract") and related Promissory Note (the
"Promissory Note") dated (Date) executed by you in favor of [name of CR
Operating Entity], S. de X.X. de C.V. ("CR"), please be advised that (i)
all rights of CR's derived from such Interval Contract have been assigned
and placed in a Payment Source and Administration Trust (the "Trust") with
BankBoston Mexico, S.A. as trustee (the "Trustee"), and (ii) all collection
rights under such Promissory Note have been pledged in favor of Textron
Financial Corporation (the "Pledgee"), by means of Pledge Agreement and
endorsement dated November 23, 1999 (the "Pledge"), as security under that
certain Loan and Security Agreement dated as of November 23, 1999 (the
"Loan Agreement").
All collection rights derived from the Promissory Note and the
Interval Contract shall be exercised by the Pledgee and, until further
notice is provided to you either by the Pledgee or the Trustee, all of your
payments under the Promissory Note and the Interval Contract shall be made
in accordance with the accompanying invoice or the present method of
payment. Payment by you of one or more monthly installments payable under
the Promissory Note and Interval Contract shall be deemed as your
acknowledgement of the creation of the Pledge and transfer in Trust
mentioned in the preceding paragraph.
In addition, upon notice sent to you by the Trustee, all other rights
of CR under the Interval Contract, shall be exercised exclusively by the
Trustee; provided, however, that CR's obligations under the Interval
Contract shall remain the responsibility of CR.
As indicated above your payment of one or more monthly installments
will indicate your acknowledgement of this notice. However, for our
records, would you please sign your acknowledgement in the space reserved
for such purposes below, and return this letter in the pre-addressed
envelope provided.
Sincerely,
(name of CR Entity)
By:
I hereby acknowledge receipt of this communication:
_______________________
Name:
Date:
Place of signature:
