(English Translation of Spanish Agreement)
AGREEMENT MODIFYING A CONTRACT TO OPEN A SIMPLE CREDIT WITH
FIDUCIARY GUARANTEE, ENTERED INTO:
A). By a first party, BANCOMER, S.A., INSTITUCION DE BANCA MULTIPLE, GRUPO
FINANCIERO, hereinafter denominated "BANCOMER", herein represented By Engineer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Doctor ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Viezca;
B) By a second party, C.R. Resorts Capital, Sociedad de Reponsabilidad Limitada
de Capital Variable, hereinafter denominated the "ACCREDITED," herein
represented by
C) By a third party, C.R. Resorts Puerto Vallarta, Sociedad de Responsabilidad
Limitada de Capital Variable, hereinafter denominaated the "FOUNDER OF TRUST 1",
herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
D) By a fourth party, C.R. Resorts Cancun, Sociedad de Responsabilidad Limitada
de Capital Variable, hereinafter denominaated the "FOUNDER OF TRUST 2". Herein
represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇;
E) By a fifth party, C.R. Resorts Los Cabos, Sociedad de Responsabilidad
Limitada de Capital Variable, hereinafter denominated the "FOUNDER OF TRUST 3,"
herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇;
F) By a sixth party, Desarrollos Turisticos Integrales de Cozumel, Sociedad de
Responsabilidad Limitada de Capital Variable, hereinafter denominated the
"FOUNDER OF TRUST 4" herein repreented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
G) By a seventh party, for the effects set forth hereinafter, Corporacion
Mexitur, Sociedad de Responsabilidad Limitada de Capital Variable, hereinafter
denominated "MEXITUR," herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇;
H) By an eighth party, for the efects set forth hereinafter, Club ▇▇▇▇▇▇,
Sociedad Anonima De Capital Variable, hereinafter denominated "▇▇▇▇▇▇" herein
repesnted by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇.
I) By a ninth party for the effects set forth hereinafter, Desarrollos
Turisticos ▇▇▇▇▇▇, Sociedad de Responsabilidad Limitada de Capital Vaariable,
hereinafter denominated "DTR" herein represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇.
J) By a tenth paarty as Fiduciary (Trustee), Fianzas Monterrey, hereinafter
denominated the "TRUSTEE," herein repreented by Mr. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇.
All of the above pursuant to the following Antecedents, Declarations and
Clauses:
Chapter I
A N T E C ED E N T S
I,. CONSTITUTION OF THE ACCREDITED, FACILTIES AND POWERS. The Accredited
declares, through its representative, that:
A) On November twenty six nineteen hundred ninety nine, it requested and
obtained from BANCOMER a simple credit denominated in UDIS for the principal
amount up to the equivalent on the date of its disposal of US $ 7,000,000.00
(SEVEN MILLION DOLLARS 00/100) legal currency of the United States of America,
destined to guarantee and its case to cover to the holders of securities, the
payment of their interest, and for the payment of expenses. This operation was
documented by means of a credit contract, hereinafter denominated the "Credit
Contract,", and on the same date, THE FOUNDERS OF TRUST 1, 2 and 3 constituted a
trust in guarantee to which they contributed the portfolio, maintenance fees and
promissory notes (the "Trust on the Portfolio and Fees"), to guarantee with this
the ACCREDITED's obligations under the terms of the Credit Contract. As part of
the Credit guarantees, the ACCREDITED and the Founders of the Trust constituted
a fiduciary guarantee on real estaate locaated in Cozumel, ▇▇▇▇▇▇▇▇ Roo (the
"Cozumel Trust), and on real estate located in Cabo San ▇▇▇▇▇, Baja California
Sur (the "Cabo San ▇▇▇▇▇ Trust")
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B) On August eighteen the same year, it entered into a first Modifing Agreement
(the "First Modifying Agreement" with BANCOMER in order to modify Clause SEVENTH
in the Credit Contract and release the fiduciary guarantee constituted in favor
of BANCOMER through the Cozumel Trust.
C) Prior to this date, the ACCREDITED requested BANCOMER the release of the Cabo
San ▇▇▇▇▇ Trust, which was carried out by means of instrument 2,159 dated
October 16, 2000 before public notary number 212 in the D.F., Attorney Francisco
▇▇▇▇▇▇ ▇▇▇▇▇, containing the reversion of ownership of the real estate due to
the cancellation of the trust in guarantee.
D) It wishes to modify again the terms of the Credit Contract, so that BANCOMER
can extende the amount of the credit up to the principal amount equal in UDIS to
US $2,000,000.00 (TWO MILLION DOLLARS 00/100).
E) On November 30, 2000, and with respect to the Additional Credit and with this
Second Modifing Agreement, the ACCREDITED requested and obtained a "bridge"
credit documented with a promissory note, expiring on December 15, 2000 which it
is understood forms part of the Credit Documents.
F) It is in default with some of its obligations covered by the Credit Contract,
and has therefore requested BANCOMER to grant an extension of thirty natural
days in order to regularize its situation or negotiate the granting of
exemptions to the said defaults. In this respect, BANCOMER has granted the
extension for the above mentioned purposes.
CHAPTER II
D E C L A R A T I O N S
Under protest of telling the truth, and in full undertanding of provisions
contained in article 112 in the Law for Credit Institutions, they declare the
following:
I. Each party ratifies in each every one of its parts the antecedents and
declarations in the Credit Contract and in the First Modifying Agreement, as if
they were made on this same date, and which for all effects are considered
reproduced to the letter herein, therefore, it is unnecessary to transcribe them
again.
II, Each party ratifies that the representatives have the powers to enter into
this agreement.
III Each declaration contained in the Credit Contract and in the First Modifing
Agreement maintain their meaning and reach, unless specifically defined herein
in another way.
IV. The FOUNDERS OF THE TRUST 1, 2 AND 3 declare that they are willing to
continue guaranteeing the fulillment of the ACCREDITED'S obligations pursuant to
this Agreement by means of the Trusts in Guarantee on (a) certain collection
rights resulting from the sale to the public of Memberships; and b) the
Maintenance Fees which will preserve the value of the Portfolio.
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V. The FOUNDER OF TRUST 3 declares that:
a) On November 8, 2000, the FOUNDER OF TRUST 3 requested the Ministry of Tresury
and Public Credit to return the amount of $41,52,368.00 Pesos which the FOUNDER
OF TRUST 3 paid as a Value Added Tax. For identification purposes, prior to the
date of execution of this instrument, the FOUNDER OF TRUST 3 delivered to
BANCOMER a copy of the respective document;
b) As described in the above mentioned document, the FOUNDER OF TRUST 3 is
titleholder of the collelction rights on the amount to be returned by the
Ministry of Treasury and Public Credit, and on the amount itself, once it has
been received (hereinafter denominated the "Collection Rights,")
c) It is willing to contribute to the Trust on the Portfolio and Maintenance
rights the collection rights on the amount to be returned by the Mninistry of
set forth below, so that, upon receiving the corresponding amount, these may be
applied to the payment as far as it may reach, of moratorium interest, ordinary
interest and unpaid principal amount in the Additional Credit; and
d) It is also willing to constitute a new irrevocable trust in guarantee on the
Cabo San ▇▇▇▇▇ real estate, in order to guarantee to BANCOMER the punctual and
total fulfillment of all the obligations derived from the Credit and from he
Additional Credit,
The parties declare that they wish to partially modify the terms of the Credit
Contract, the First Modifying Agreement, the Trust on the Maintenance Fees and
other Credit Documents, under the terms herein expressed, without substituting,
affecting or altering these documents in any other way, whose provisions shall
remain in full effect . By virtue of the above, the parties agree the following:
CHAPTER III
C L A U S E S
FIRST. DEFINITIONS AND ACCOUNTING TERMS
A) Prioe Definitions
All the terms defined in the Credit Contract and in the First Modifying
Agreememt, when used in the Contract hereunder, shall have the same meaning
assigned therein, except when defined in this document in another way.
B) New Definitions.
Aside from the above, the following Definitions shall be applied to this
Contract:
"Additional Credit" refers to the credit granted under the Contract hereunder.
"Collection Rights" has the meaning assigned under Declaration (V) (b)
hereunder.
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"Credit Documents" has the meaning assigned in the Credit Contract, added to
the Agreement hereunder and the new Promissory Note as part of the said Credit
Documents.
"New Promissory Note" means the promissory note subscribed by the ACCREDITED in
favor of BANCOMER, and it additionally documents the Additional Credit
SECOND.- MODIFICATIONS TO THE CREDIT CONTRACT
The parties herein partially modify the terms of the Credit Contract and other
Credit Documents, in order to establish the terms and conditions to which the
granting of the Additional Credit is subject, as follows:
(I) BANCOMER herein opens to the ACCREDITED an Additional Credit to the Credit
established in the Credit Contract, and therefore extends the principal amount
of the said Credit in the principal amount of US $2,000,000.00 (TWO MILLION
DOLLARS 00/100)
II) The destination of the Additional Credit shall be the payment of the
unsecured (bridge) Credit granted on November 30, 2000, which was used to
complete the payment of ordinary Interest derived from the Issuance, maturing on
December 1, 2000.
III) The ACCREDITED shall pay BANCOMER, precisely on the date requested by
BANCOMER, a commission for the disposal of the Additional Credit, in the amount
agreed in a separate document.
IV) The period for the Additional Credit is three and a half months as from the
date of disposal of the same, which will be carried out on the same date as this
document. The ACCREDITED can prepay the Additional Credit, with no premium or
penalty, with the notification provided in the Credit Contract:
Date of Payment Amount of Principal
(considered as the equivalent in
Pesos or UDIS of the following amounts)
December 29, 2000 US$ 200,000.00
January 31, 31, 2001 US$ 600,000.00
February 28, 2001 US$ 600,000.00
March 30, 2001 US$ 600,000.00
V) The ACCREDITED shall pay ordinary interest on unpaid balances of the
principal amount of the Additional Credit, payable on the same dates agreed for
payment of the principal amount, calculated in accordance with the Ordinary Rate
provided in the Credit Contract.
VI) In the event of moratorium in the payment of all or part of the Additional
Credit, the ACCREDITED shall pay BANCOMER interest on unpaid balances as long as
the morataorium persists, at the rate of moratorium interest provided in the
Credit Contract, payable on sight
VII) In order to guarantee to BANCOMER the fulfillment of their obligations
pursuant to this document, and in addition to the guarantees constituted in
accordance with the Credit Contract, the parties hereunder agree as follows:
A) The ACCREDITED and the FOUNDERS OF TRUSTS 1, 2 and 3.are obligated to
Guarantee the fulfillment of their obligations derived from the Additional
Credit, through through the constitution on this date of a fiduciary guarantee
on the Portfolio,in a proportion of two to one with respect to the principal
amount of the Additional Credit. To do so, on this same date, and through a
separate document, the ACCREDITED and the FOUNDERS OF TRUSTS 1, 2 and 3 modify
the effect of the Trust on the Portfolio and Fees, and contribute to the Trust
the Portfolio and Promissory Notes in the equivalent of UDIS of US$ 4,000,000.00
(FOUR MILLION DOLLARS).
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B) In order to additionally guarantee the fulfillment of the obligations of the
ACCREDITED and the FOUNDERS OF THE TRUST 1,2 and 3 derived from the Additional
Credit, the FOUNDER OF THE TRUST 3 on this same date constitutes an irrevocable
trust in guarantee in favor of BANCOMER, under similar or identical terms in the
Cabo San ▇▇▇▇▇ Trust, contributing thereto the Cabo San ▇▇▇▇▇ real estate to
guarantee to BANCOMER the fulfillment by the ACCREDITED, of its obligations
derived from the Additional Credit.
The ACCREDITED and the FOUNDERS OF THE TRUST 1, 2 and 3 agree that both BANCOMER
and the TRUSTEE shall have the full right to register the above mentioned Trust,
at the ACCREDITED's expense, and therefore, both BANCOMER and the TRUSTEE may
carry out the registration when so ever any default should occur under the terms
of any of the Credit Documents, and to this end they are obligated to grant an
irrevocable power-of-attorney, one to the other so that they may be able to
carry out the above.
With respect to the above, and in order to fulfill the above mentioned
contractual obligation, the ACCREDITED and the FOUNDERS OF THE TRUST 1,2 and 3
grant BANCOMER and the TRUSTEE a special irrevocable power-of-attorney, so that
they may have the faculties to acting for the account of the ACCREDITED and the
FOUNDERS OF THE TRUST 1,2 and 3, any one of them can register the above
mentioned trust in guarantee.
C) To additionally guarantee the fulfillment of the obligations of the
ACCREDITED and the FOUNDERS OF THE TRUST 1, 2 and 3, derived from the Additional
Credit, the FOUNDER OF THE TRUST 3 agrees to affect in guarantee the Collection
Rights in favor and to the satisfaction of BANCOMER, either through the
constitution of a deposit in guarantee, or placing the said Collection Rights in
an irrevocable Trust, thus modifying the effect of the Trust on the Portfolio
and Fees, as may be convenient to the parties. .
The terms of the said guarantee, among others, shall be:
1) Once that the depository or the TRUSTEE, as may be the case, receives
the repective amounts, against receipt of the corresponding instructions,
these shall immediately be deposited to BANCOMER so that the latter may
apply these amounts at once to the anticipated payment, as far as it may
reach, of the Additional Credit, under the terms and in the order provided
in the Credit Contract;
2) Both the ACCREDITED and the FOUNDER OF THE TRUST 3 shall be obligated to
effectively and actively persue the payment of the amount requested.
3) The FOUNDER OF THE TRUST 3 is obligated to deliver to BANCOMER a
fortnightly written report, beginning on December twenty, 2000, describing
the progress in the proceeding for the return of taxes mentioned during the
foregoing fifteen days, as well as the expectations for payment
D) In order to additionally guarantee the fulfillment of the obligations derived
from the Additional Credit, the ACCREDITED and the FOUNDERS OF TRUST 1,2 and 3
are 6 obligated to achieve that Raintree Resorts, Inc., MEXITUR, or any other
company related to the group of interest to which the ACCREDITED belongs, to
place in trust, by means of a modification to the Trust on the Portfolio and
Fees, constitute a conditional deposit, or affect through any other vehicle
which may be convenient to the parties, the amount of US $ 1,000,000.00 (ONE
MILLION DOLLARS 00/100) IN CASH,in order to guaarantee the fulfillment of the
ACCREDITED's obligations derived from the Additional Credit, in terms
satisfactory to BANCOMER.
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VIII) The Causes for Anticipated Maturity provided in the Credit Contract are
applied to this instrument, therefore any default to the obligaations provided
herein or in the said Credit Contract shall give BANCOMER the right to consider
the anticipated maturity of the Credit and of the Additional Credit, under the
terms of Clause NINETEEN in the Credit Contract, applying to the payment of the
total of the guarantees constituted as detailed in the Credit Contract and in
this Agreement.
THIRD.- SUSPENSIVE CONDITIONS
BANCOMER's obligation to pay out the Additional Credit, and to make the
modifications herein described, as well as those corresponding to the TRUSTEE
in accordance with the reforms to the Trust on the Portfolio and the Fees, are
subject to the following suspensive conditions:
I) That each of the parties subscribing the Credit Documents (except BANCOMER
and the TRUSTEE) are up-to-date in the fulfillment of their respective
obligations, except if BANCOMER has issued a written dispensation or extension
with respect to one or more of the said obligations.
II) That the ACCREDITED deliver to BANCOMER on the date of execution of the
Second Modifying Agreement hereunder;
A) This instrument, duly signed by all the parties participating herein and
ratified before a Public Notary, as well as the New Promissory Note subscribed
by the ACCREDITED.
B) Evidence, to BANCOMER's satisfaction, issued by ACCREDITED's legal represen-
tative, that there is no default on its parts with respect to the obligations to
do or not to do derived from the Credit Documents, since all the provisions
contained in paragraph I above have been fulfilled.
C) Evidence, to BANCOMER's satisfaction, issued by the TRUSTEE, that the
Portfolio in guarantee is affected in a minimum ratio of 3.0 to 1.0 (THREE TO
ONE) for the outstanding balance of the credit, and of 2 to 1 (TWO TO ONE) for
the Additional Credit, considering the value of the UDIS on the date of
execution of the Agreement hereunder, in the understanding that if all or part
of the Portfolio should be replaced by another in Pesos or Dollars, the parties
shall determine the applicable equivalence.
E) Opinion of the FOUNDER OF THE TRUST 3's external auditors, based on the
applicable legal provisions that the FOUNDER OF THE TRUST 3 effectively has the
right so that the Ministry of Treasury and Public Credit delivers to it the
amount of $41,524,368.00 for the return of the amounts paid for the Value Added
Tax.
F) Evidence to BANCOMER's satisfaction, issued by the TRUSTEED, that the Trust
on the Portfolio and Fees under the terms herein provided have been modified,
and of having received the above mentioned properties, rights and assets as a
contribution to the Trust on the Portfolio and Fees.
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FOURTH.- NOTIFICATIONS.
All the notifications or communications provided or required by this Agreement
shall be in writing, and shall be delivered or sent to each party, to the
addresses indicated in this Clause, or to any other address that the said party
may indicate in writing to the others. These notifications and communications
shall be effective upon being delivered as expressed above, and no notification
shall be effective until it is effectively received by the party to whom it is
destined.
With respect to the above, and for all matters relative to this instrument and
other Credit Documents related thereto, the parties indicate the following to be
their addresses:
THE ACCREDITED, Boulevard ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ No. 3642
THE FOUNDERS OF THE TRUST 7TH Floor
MEXITUR, DTR and ▇▇▇▇▇▇ Colonia ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇, Federal District
BANCOMER ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE TRUSTEE ▇▇▇▇▇ ▇▇▇▇▇ 38
Colonia ▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Federal District
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FIFTH.- EXPENSES
A) The ACCREDITED shall pay BANCOMER, within ten Working Days after the date of
execution of this document, all the reasonable expenses related to the
modifications to the Credit Documents, including, without limitation, those
relative to the Credit Contract, the preparation of this Agreement, and any
registrations and cancellations in the Public Registers of Property, notarial
fees and expenses, expenses and taxes caused by the assessment of the additional
Portfolio guaranteeing the fulfillment of this Agreement, and in general, all
the expenses in connection with the present operation and with the Credit
Documents,.including furthermore, travelling expenses, fees and expenses
incurred by BANCOMER's external legal consultants and other expenses in
connection with the above, all of which shall be paid by the ACCREDITED, without
requiring the intervention of a judicial federative or judicial official.
BANCOMER agrees to carry out its efforts within its reach so that the amount of
the above mentioned expenses are not higher than the market average.
C) The ACCREDITED shall pay the TRUSTEE on the same date as the execution of
this, instrument, the TRUSTEE's fees and expenses, and in general, all the
relative expenses corresponding to be payable to the TRUSTEE, all of which shall
be paid by the ACCREDITED without requiring the intervention of the public
notary or judicial official.
SIXTH.- JURISDICTION
For all matters relative to this instrument, the other Credit Documents, the
Trusts in Guarantee and the documents in connection with or derived from the
same, the parties shall specifically submit to the jurisdiction of the competent
courts in the Federal District, waiving any other jurisdiction that might
correspond to them by virtue of their present or future domicilles, or due to
any other reason.
SEVENTH.- APLICABLE LAW
This Agreement and to ther Credit Documents shall be interpreted in accordance
with the laws in effect in the United Mexican States.
EIGHTH.- SUBSISTENCE
The parties declare that they enter into the present Agreement, without the
intention of subtituting, and agree that the provisions contained in the Credit
Contract and other documents derived from or in connection with the same shall
fully subsist, with all the legal value and force, and therefore the same shall
not be substituted in any way whatoever.
In testimony of the above, the parties participaating in this Agreement signed
in the city Of Mexico, Federal District, on the fifteenth dayof December, 2000.
8
b
THE ACCREDITED: THE FOUNDERS OF THE TRUST:
C.R. Resorts Capital, C.R. Resorts Puerto Vallarta, ▇.▇▇ ▇.▇. de ▇.▇
▇. de ▇.▇. de C.V. C.R. Resorts Cancun, ▇.▇▇ ▇.▇. de C.V.
C.R. Resorts Los Cabos, ▇.▇▇ ▇.▇. de.C-V
Desarrollos Turisticos Integrales de Cozumel,
S. de ▇.▇. de C.V.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------- ---------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Ripol ▇▇▇▇▇▇▇▇
Charge: Attorney-in-Fact Charge: Aattorney-in-Fact
MEXITUR, ▇▇▇▇▇▇ and DTR
Corporacion Mexitur, S. de ▇.▇.▇▇ C.V.
Club ▇▇▇▇▇▇, S.A. de C.V.
Desarrollos Turisticos ▇▇▇▇▇▇, ▇.▇▇ ▇.▇. deC.V.
/S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Charge: Attorney-in-Fact
BANCOMER THE TRUSTEE
Bancomer, S.A. Fianzas Monterrey, S.A.
Institucion de Banca Multiple
Grupo Financiero
/s/ Ing ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ----------------------
By: Ing. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Thierry By: Lic. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Director Corporate Bank Special Attorney-in-Fact
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
By: Dr, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Viezca
Director Corporate Bank
9
