EXHIBIT 10.8.3
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT ("Agreement") is entered into as of the 15th
day of August, 1996, by and between FINOVA CAPITAL CORPORATION, a Delaware
corporation, formerly known as Greyhound Financial Corporation ("Lender"),
and SIGNATURE RESORTS, INC., a Maryland corporation ("Signature").
R E C I T A L S
A. Lender's predecessor-in-interest, Greyhound Real Estate Finance
Company, an Arizona corporation ("GREFCO"), and Cypress Pointe Resorts,
L.P., a Delaware limited partnership ("Cypress"), entered into that
Construction Loan Agreement dated as of December 19, 1991 pursuant to which
GREFCO agreed to make a construction loan (the "Cypress Construction Loan")
to Cypress for the purposes more particularly described therein (such
Construction Loan Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred
to collectively as the "Cypress Construction Loan Agreement"). GREFCO and
Cypress also entered into that Loan and Security Agreement dated as of
December 19, 1991 pursuant to which Lender agreed to make receivables and
working capital loans (the "Cypress Receivables Loan") to Cypress (such
Loan and Security Agreement, together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing, is hereinafter referred
to collectively as the "Cypress Receivables Loan Agreement"). Pursuant to
that Assignment dated as of January 13, 1993 by and between GREFCO and
Lender, GREFCO assigned to Lender all of GREFCO's rights and obligations
under the Cypress Construction Loan, the Cypress Construction Loan
Agreement, the Cypress Receivables Loan and the Cypress Receivables Loan
Agreement, and all documents and instruments executed in connection
therewith.
B. Lender and San Xxxx Resort Partners, L.L.C., a Georgia limited
liability company ("San Xxxx"), entered into that Construction Loan
Agreement dated as of June 6, 1996 pursuant to which Lender agreed to make
a construction loan (the "San Xxxx Construction Loan") to San Xxxx for the
purposes more particularly set forth therein (such Construction Loan
Agreement, together with any and all renewals, extensions, amendments,
replacements, restatements, supplements or modifications, whether now or
hereafter existing, is hereinafter referred to collectively as the "San
Xxxx Construction Loan Agreement"). San Xxxx and Lender also entered into
that Loan and Security Agreement dated as of June 6, 1996 pursuant to which
Lender agreed to make receivables and working capital loans (the "San Xxxx
Receivables Loan") to San Xxxx for the purposes more specifically described
therein (such Loan and Security Agreement, together with any and all
renewals, extensions, amendments, replacements, restatements, supplements
or modifications, whether now or hereafter existing, is hereinafter
referred to collectively as the "San Xxxx Receivables Loan Agreement").
C. Pursuant to that Private Placement Memorandum dated as of May 28,
1996, Signature solicited and received the consent and agreement of the
general partner and limited partner of Cypress and the members of San Xxxx
to exchange their respective interests in Cypress and San Xxxx for shares
of common stock in Signature (the "Consent Solicitation"). Pursuant to the
Consent Solicitation, the general partner and limited partner of Cypress
and the members of San Xxxx have exchanged their respective interests in
such entities for shares of common stock in Signature. Essentially
simultaneously therewith, each of the corporate partners or members of
Cypress and San Xxxx were merged with and into Signature, and each of the
interests of the partners and members of Cypress and San Xxxx were
transferred to Signature. As of the date of this Agreement, Signature
constitutes the surviving corporation of such mergers and interest
transfers (the "Signature Merger").
D. Signature and Lender now desire and intend by this Agreement to
confirm the rights, obligations and liabilities of Signature (as the
successor to Cypress and San Xxxx), as the Borrower
under the Cypress Construction Loan, the Cypress Receivables Loan, the
Cypress Construction Loan Agreement, the Cypress Receivables Loan
Agreement, the San Xxxx Construction Loan, the San Xxxx Receivables Loan,
the San Xxxx Construction Loan Agreement and the San Xxxx Receivables Loan
Agreement, and all documents and instruments executed in connection
therewith.
NOW, THEREFORE, in consideration of the foregoing Recitals and all
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Signature hereby state, confirm and agree as
follows:
A G R E E M E N T
1. ASSUMPTION OF CYPRESS CONSTRUCTION LOAN AND CYPRESS RECEIVABLES LOAN .
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1.1 Definitions. Unless specifically defined herein, all initial
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capitalized terms used in this SECTION 1 shall have the same meaning as set
forth in the Cypress Receivables Loan Agreement. The following terms shall
have the meanings ascribed to them below:
1.1.1 "Cypress Loan Documents" shall mean, collectively, the
Cypress Construction Loan Agreement, the Cypress Receivables Loan
Agreement, the Construction Loan Documents (as defined in the Cypress
Construction Loan Agreement) and the Documents (as defined in the
Cypress Receivables Loan Agreement), together with any and all
renewals, extensions, amendments, replacements, restatements,
supplements or modifications, whether now or hereafter existing.
1.1.2 "Cypress Obligations" shall mean and refer to each and
every obligation, duty, covenant, undertaking and condition which
Cypress is required or has agreed to perform under the Cypress Loan
Documents, and each and every other obligation of Cypress under the
Cypress Construction Loan and the Cypress Receivables Loan now or
hereafter owing to Lender.
1.2 Assumption of Cypress Obligations. Signature hereby assumes all
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obligations of Cypress under the Cypress Loan Documents for the payment of
the Cypress Construction Loan and the Cypress Receivables Loan and any and
all other indebtedness created or evidenced thereby and for the performance
and observance of all the covenants, provisions, representations,
warranties and agreements of the Borrower under the Cypress Loan Documents
as if Signature were an original party thereto.
1.3 Consent by Lender. Lender hereby consents to the transfer to and
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assumption by Signature of all of the Cypress Obligations and Lender hereby
agrees from and after the date hereof to recognize Signature as the
"Borrower" under the Cypress Loan Documents. Such consent shall not
constitute a consent to any further transfer or assignment of the Cypress
Obligations or for any other transfer, assignment or transaction for which
Lender's consent is required under the Cypress Loan Documents.
1.4 Representations, Warranties, Acknowledgments, Covenants and
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Agreements Relating to the Cypress Construction Loan and the Cypress
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Receivables Loan. As a material inducement to Lender to enter into this
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Agreement, and acknowledging Lender's reliance upon the truth and accuracy
thereof, and in addition to the representations, warranties,
acknowledgments, covenants and agreements set forth in SECTION 3 below,
Signature hereby represents, warrants, acknowledges, covenants and agrees
that:
1.4.1 The Cypress Obligations are just and owing.
1.4.2 The obligation of Signature to repay and perform the
Cypress Obligations is absolute, irrevocable and unconditional and
there exists no right of setoff or recoupment,
counterclaim or defense of any nature whatsoever to the payment and
performance of the Cypress Obligations.
1.4.3 Signature hereby ratifies, reaffirms, acknowledges and
agrees that the Cypress Obligations and the Cypress Loan Documents
represent the valid, enforceable and collectible obligations of
Signature and, as of the date hereof, there exists no claims or
defenses (personal or otherwise) whatsoever with respect to the
Cypress Obligations. Signature further acknowledges and represents
that no event has occurred and no condition exists that, after notice
or lapse or time, or both, would constitute a default under the
Cypress Loan Documents.
1.4.4 Signature and Lender acknowledge and agree that all terms,
conditions and provisions of the Cypress Loan Documents are continued
in full force and effect and remain unaffected and unchanged except as
may be modified or amended by this Agreement; this Agreement in no way
acts as a release or relinquishment of, and in no way affects, the
liens, security interests and rights created by or arising under any
of the Cypress Loan Documents or the priority thereof. Such liens,
security interests and rights are hereby ratified, confirmed, renewed
and extended in all respects.
1.5 Amendments and Modifications to Cypress Loan Documents. The
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Cypress Loan Documents are hereby amended and modified in the following
respects:
1.5.1 The following defined term is hereby added to the
"Definitions" section of the Cypress Receivables Loan Agreement:
"'Assumption Agreement' shall mean that Assumption Agreement executed
by Signature Resorts, Inc., a Maryland corporation, and FINOVA Capital
Corporation, a Delaware corporation, and dated as of August 15, 1996."
1.5.2 All references in the Cypress Loan Documents to the term
"Borrower" shall hereinafter be deemed to mean and refer to Signature.
1.5.3 The term "Guarantors" as used in the Cypress Loan
Documents is hereby amended and modified to delete therefrom the
following entities: Argosy Group, Inc., a Georgia corporation, and
Argosy Canyon Investments, L.P., a California limited partnership.
1.5.4 Section 8.2 of the Cypress Construction Loan Agreement is
hereby modified and restated in its entirety to read as follows:
"Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the State of Maryland and is qualified
to do business in the State of Florida."
1.5.5 Section 8.1(a) of the Cypress Receivables Loan Agreement
is hereby modified and restated in its entirety to read as follows:
"Borrower is, and will continue to be during the Term hereof, a
corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and is, and will continue to
be during the Term hereof, qualified to do business and in good
standing in each jurisdiction in which it is selling Time-Share
Interests or where the location or nature of its properties or
business makes such qualification necessary (except where failure to
do so would not adversely affect Lender's ability to realize upon the
Receivables Collateral or any other security for the Performance of
the Obligations or materially adversely affect the business or
financial condition of Borrower or the ability of Borrower to complete
Performance of the Obligations). Borrower has, and will continue to
have, powers adequate for making and performing under the
Documents, for undertaking and performing the Obligations and for
carrying on its business and owning its property."
1.1.6 The following provision is hereby added as Section 13.1(m)
of the Cypress Construction Loan Agreement:
"(m) the occurrence of an 'Event of Default' under the San Xxxx Loan
Documents (as defined in the Assumption Agreement)."
1.1.6 The following provision is hereby added to the terms of
the Cypress Receivables Loan Agreement as Section 9.1(l):
"(l) the occurrence of an 'Event of Default' under the San Xxxx Loan
Documents (as defined in the Assumption Agreement)."
1.6 Release of Cypress Guarantors. Lender hereby agrees that, upon
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receipt from the Guarantors of the Cypress Construction Loan, the Cypress
Construction Loan Agreement, the Cypress Receivables Loan and the Cypress
Receivables Loan Agreement of a duly-executed Mutual Release of Guaranty in
a form mutually acceptable to Lender and said Guarantors, Lender shall
release the Guarantors in accordance with the terms and conditions set
forth in the Mutual Release.
2. ASSUMPTION OF SAN XXXX LOAN.
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2.1 Definitions. Unless specifically defined herein, all initial
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capitalized terms used in this SECTION 2 shall have the same meaning as set
forth in the San Xxxx Receivables Loan Agreement. The following terms
shall have the meanings ascribed to them below:
2.1.1 "San Xxxx Loan Documents" shall mean, collectively, the
San Xxxx Construction Loan Agreement, the San Xxxx Receivables Loan
Agreement, the Construction Loan Documents (as defined in the San Xxxx
Construction Loan Agreement), the Receivables Loan Documents and the
Working Capital Note (as each of such documents are defined in the San
Xxxx Receivables Loan Agreement), together with any and all renewals,
extensions, amendments, replacements, restatements, supplements or
modifications, whether now or hereafter existing.
2.1.2 "San Xxxx Obligations" shall mean and refer to each and
every obligation, duty, covenant, undertaking and condition which San
Xxxx is required or has agreed to perform under the San Xxxx Loan
Documents, and each and every other obligation of San Xxxx under the
San Xxxx Construction Loan and the San Xxxx Receivables Loan now or
hereafter owing to Lender.
2.2 Assumption of San Xxxx Obligations. Signature hereby assumes all
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obligations of San Xxxx under the San Xxxx Loan Documents for the payment
of the San Xxxx Construction Loan and the San Xxxx Receivables Loan and any
and all other indebtedness created or evidenced thereby and for the
performance and observance of all the covenants, provisions,
representations, warranties and agreements of the Borrower under the San
Xxxx Loan Documents as if Signature were an original party thereto.
2.3 Consent by Lender. Lender hereby consents to the transfer to and
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assumption by Signature of all of the San Xxxx Obligations and Lender
hereby agrees from and after the date hereof to recognize Signature as the
"Borrower" under the San Xxxx Loan Documents. Such consent shall not
constitute a consent to any further transfer or assignment of the San Xxxx
Obligations or for any other transfer, assignment or transaction for which
Lender's consent is required under the San Xxxx Loan Documents.
2.4 Representations, Warranties, Acknowledgments, Covenants and
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Agreements Relating to San Xxxx Construction Loan and San Xxxx Receivables
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Loan. As a material inducement to Lender to enter into this Agreement, and
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acknowledging Lender's reliance upon the truth and accuracy thereof, and in
addition to the representations, warranties, acknowledgments, covenants and
agreements set forth in SECTION 3 below, Signature hereby represents,
warrants, acknowledges, covenants and agrees that:
2.4.1 The San Xxxx Obligations are just and owing.
2.4.2 The obligation of Signature to repay and perform the San
Xxxx Obligations is absolute, irrevocable and unconditional and there
exists no right of setoff or recoupment, counterclaim or defense of
any nature whatsoever to the payment and performance of the San Xxxx
Obligations.
2.4.3 Signature hereby ratifies, reaffirms, acknowledges and
agrees that the San Xxxx Obligations and the San Xxxx Loan Documents
represent the valid, enforceable and collectible obligations of
Signature and, as of the date hereof, there exists no claims or
defenses (personal or otherwise) whatsoever with respect to the San
Xxxx Obligations. Signature further acknowledges and represents that
no event has occurred and no condition exists that, after notice or
lapse or time, or both, would constitute a default under the San Xxxx
Loan Documents.
2.4.4 Signature and Lender acknowledge and agree that all terms,
conditions and provisions of the San Xxxx Loan Documents are continued
in full force and effect and remain unaffected and unchanged except as
may be modified or amended hereby; this Agreement in no way acts as a
release or relinquishment of, and in no way affects, the liens,
security interests and rights created by or arising under any of the
San Xxxx Loan Documents or the priority thereof. Such liens, security
interests and rights are hereby ratified, confirmed, renewed and
extended in all respects.
2.5 Amendments and Modifications to the San Xxxx Loan Documents. The
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San Xxxx Loan Documents are hereby amended and modified in the following
respects:
2.5.1 The following defined term is hereby added to the
"Definitions" section of the San Xxxx Receivables Loan Agreement:
"'Assumption Agreement' shall mean that Assumption Agreement executed
by Signature Resorts, Inc., a Maryland corporation, and FINOVA Capital
Corporation, a Delaware corporation, and dated as of August 15, 1996."
2.5.2 All references in the San Xxxx Loan Documents to the term
"Borrower" shall be deemed to mean and refer to Signature.
2.5.3 All references to the "Guarantors" in the San Xxxx Loan
Documents shall be modified and amended to delete therefrom the
following entities: AKGI San Xxxx, Inc., a Georgia corporation, and
KGK San Xxxx, Inc., a Georgia corporation.
2.5.4 Paragraph 8.2 of the San Xxxx Construction Loan Agreement
is hereby modified and restated in its entirety to read as follows:
"Borrower is a corporation, duly organized, validly existing and in
good standing under the laws of the State of Maryland."
2.5.5 Paragraph 8.1(a) of the San Xxxx Receivables Loan
Agreement is hereby modified in its entirety to read as follows:
"Borrower is, and will continue to be during the Term hereof, a
corporation duly organized, validly existing and in good standing
under the laws of the State of Maryland and is, and will continue to
be during the Term hereof, qualified to do business and in good
business in California and in each jurisdiction in which it is selling
Time-Share Interests or where the location or nature of its properties
or business make such qualification necessary (except where failure to
do so would not adversely affect Lender's ability to realize upon the
Receivables Collateral, the Purchased Notes and Mortgages Collateral
or any other security for the Performance of the Obligations or
materially adversely affect the business or financial condition of
Borrower or the ability of Borrower to complete the Performance of the
Obligations). Borrower has, and will continue to have, powers adequate
for making and performing under the Receivables Loan Documents, for
undertaking and performing the Obligations and for carrying on its
business and owning its property."
2.5.6 The following provision is hereby added as Paragraph
13.1(n) to the San Xxxx Construction Loan Agreement:
"the occurrence of an 'Event of Default' under the Cypress Loan
Documents (as defined in the Assumption Agreement)."
2.5.7 The following provision is hereby added as Paragraph
9.1(m) to the San Xxxx Receivables Loan Agreement:
"the occurrence of an 'Event of Default' under the Cypress Loan
Documents (as defined in the Assumption Agreement)."
2.6 Release of San Xxxx Guarantors. Lender hereby agrees that, upon
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receipt from the Guarantors of the San Xxxx Construction Loan, the San Xxxx
Construction Loan Agreement, the San Xxxx Receivables Loan and the San Xxxx
Receivables Loan Agreement of a duly-executed Mutual Release of Guaranty in
a form mutually acceptable to Lender and said Guarantors, Lender shall
release the Guarantors in accordance with the terms and conditions set
forth in the Mutual Release.
3. ADDITIONAL REPRESENTATIONS, WARRANTIES, ACKNOWLEDGMENTS, COVENANTS AND
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AGREEMENTS OF SIGNATURE.
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As a material inducement to Lender to enter into and grant the
consents set forth in this Agreement, and acknowledging Lender's reliance
upon the truth and accuracy thereof, and Signature's agreement to act in
accordance herewith, Signature hereby represents, warrants, acknowledges,
covenants and agrees that:
3.1 The Recitals set forth in this Agreement are true and correct.
3.2 This Agreement and all other documents and instruments executed
by Signature in connection herewith have been authorized by all necessary
action and, when executed, will, to the best of its knowledge, be the
legal, valid and binding obligations of Signature enforceable against
Signature in accordance with their respective terms.
3.3 Signature's execution, delivery and performance of this Agreement
will not (a) violate any law, rule, regulation or court order to which
Signature is subject, (b) conflict with or result in a breach of
Signature's Articles of Incorporation or Bylaws or any agreement or
instrument to which Signature is a party or by which it or its properties
are bound, or (c) result in the creation or imposition of any lien,
security interest or encumbrance on any property, whether now owned or
hereafter acquired, other than the liens in favor of Lender.
3.4 Signature is a corporation, validly existing and in good standing
under the laws of the State of Maryland. Signature is, and will remain so
during any period of time it has any outstanding obligations to Lender,
qualified to do business and in good standing in each jurisdiction where
Signature is doing business or where the location or nature of the
properties or business of Signature make such qualification necessary.
3.5 Signature and its Related Entities (as hereinafter defined) shall
each maintain, during any period of time in which any of the Cypress
Obligations or the San Xxxx Obligations remain outstanding, separate
internally-prepared financial statements with respect to the separate
operations of such entities and each of its respective properties,
notwithstanding that Signature and its Related Entities may maintain
consolidated financial statements for other purposes.
3.6 Neither Signature nor any Related Entities have paid or shall pay
any secured or unsecured debts or obligations of the other, except to the
extent any such obligations are also direct, contractual obligations of
Signature or any Related Entity under a guarantee or otherwise.
3.7 Other than distributions to shareholders or partners and
repayment of bona fide debt owed to a Related Entity, Signature shall not
transfer any funds to or accept a transfer of any funds from any Related
Entity without contemporaneous written documentation clearly identifying
that the transfer constitutes a loan or capital investment and, if the
transfer is a loan, the specific repayment terms thereof.
3.8 Signature has not taken and shall not take any action or omit to
take any action that could reasonably be expected to cause its creditors or
the creditors of any Related Entity to be confused as to which entity the
creditor is dealing with.
3.9 Signature and all Related Entities were adequately capitalized as
of the date of their creation or organization and shall continue to remain
adequately capitalized so long as any obligations of Signature remain
outstanding to Lender.
For the purposes of this Agreement, the term "Related Entities" shall
mean any corporation, partnership, limited liability company or other
entity of which Signature owns a controlling interest or otherwise
controls, either directly or indirectly, the operations of such entity, and
any corporation, partnership, limited liability company or other entity
which owns a controlling interest in or otherwise controls, either directly
or indirectly, the operations of Signature. For the purposes of this
Agreement, the following entities shall be deemed to be "Related Entities"
of Signature: AKGI-Sint Maarten, N.V., a Netherlands Antilles corporation;
Grand Beach Resort, Limited Partnership, a Georgia limited partnership;
Port Royal Resort, L.P., a South Carolina limited partnership; Lake Tahoe
Resort Partners, L.L.C., a California limited liability company; and
Kabushiki Gaisha Kei, L.L.C., a California limited liability company. Each
of the foregoing representations, warranties, acknowledgments, covenants
and agreements shall be deemed to be a part of the covenants and
obligations of Signature as Borrower under the Cypress Construction Loan,
the Cypress Receivables Loan, the San Xxxx Construction Loan and the San
Xxxx Receivables Loan as if the same were set forth in their entirety in
the Cypress Loan Documents and the San Xxxx Loan Documents.
4. CONDITIONS SUBSEQUENT.
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The consent and obligations of Lender under this Agreement are subject
to the satisfaction of the following conditions subsequent within the
applicable time periods hereinafter set forth:
4.1 Signature shall have delivered to Lender fully-executed UCC
Financing Statement Change forms or new UCC Financing Statements as Lender
may require to continue perfection of all security interests in favor of
Lender within thirty (30) days after receipt of such documents from Lender;
4.2 Within forty-five (45) days after the date of this Agreement,
Signature shall have delivered to Lender an opening balance sheet with
respect to Signature prepared in accordance with GAAP; and
4.3 Within seventy-five (75) days after the date of this Agreement,
Signature and Lender shall have agreed upon reasonable financial covenants
to be observed and maintained by Signature during the term of each of the
Cypress Construction Loan, Cypress Receivables Loan, San Xxxx Construction
Loan and San Xxxx Receivables Loan, including, without limitation,
covenants regarding the net worth of Signature, limitations on marketing
and sales expenses, debt-service coverage ratios and similar covenants.
The nonsatisfaction of any of the foregoing conditions subsequent
within the time period provided therefor shall be deemed to be an "Event of
Default" under the Cypress Loan Documents and the San Xxxx Loan Documents.
5. GENERAL.
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5.1 Signature shall execute and deliver such additional documents and
do such further acts as Lender may reasonably require to fully implement
the intent of this Agreement.
5.2 Signature shall pay all costs and expenses including, but not
limited to, recording fees, title insurance premiums and reasonable
attorney's fees incurred by Lender in connection herewith, whether or not
all of the conditions described in this paragraph are satisfied.
5.3 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
5.4 This Agreement shall be governed and construed in accordance with
the laws of the State of Arizona.
[Signature page of FINOVA/Signature Assumption Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
FINOVA CAPITAL CORPORATION,
a Delaware corporation
By:______________________________
Its:___________________________
SIGNATURE RESORTS, INC.,
a Maryland corporation
By:______________________________
Its:___________________________
