EXHIBIT 10.1
MASTER LOAN MODIFICATION AGREEMENT
THIS MASTER LOAN MODIFICATION AGREEMENT (the "Master Modification Agreement") is
made and entered into as of the 20th day of April, 2001, by and among EQUIVEST
FINANCE, INC. , a Delaware corporation ("EFI"), RESORT FUNDING, INC., a Delaware
corporation ("RFI"), EASTERN RESORTS COMPANY, LLC, a Rhode Island limited
liability company ("Company"), EASTERN RESORTS CORPORATION, a Delaware
corporation ("ERC"), OCEAN CITY COCONUT MALORIE RESORT, INC., a Maryland
corporation ("Coconut Malorie"), , BLUEBEARD'S CASTLE, Inc., a United States
Virgin Island corporation ("Bluebeard"), CASTLE ACQUISITION, INC., a United
States Virgin Island corporation ("Castle"), AVENUE PLAZA LLC, a Louisiana
limited liability company ("Avenue Plaza"), and EQUIVEST WASHINGTON, INC., a
Delaware corporation (f/k/a EFI D.C. Acquisition, Inc.) ("EFI DC") (EFI, RFI,
the Company, ERC, Coconut Malorie, Bluebeard, Castle, Avenue Plaza and EFI DC
shall be individually referred to as the "Borrower" and collectively referred to
as the "Borrowers"), jointly and severally, and EFI, EQUIVEST MARYLAND, INC., a
Delaware corporation (f/k/a EFI Maryland Acquisition, Inc.) ("Equivest
Maryland"), EQUIVEST LOUISIANA, INC., a Delaware corporation (f/k/a EFI
Louisiana Acquisition, Inc.) ("Equivest Louisiana") and EQUIVEST ST. ▇▇▇▇▇▇,
INC., a United States Virgin Islands corporation (f/k/a EFI St. ▇▇▇▇▇▇
Acquisition, Inc.) ("Equivest St. ▇▇▇▇▇▇") (EFI, Equivest Maryland, Equivest
Louisiana and Equivest St. ▇▇▇▇▇▇ shall be individually referred to as the
"Guarantor" and collectively referred to as the "Guarantors"), jointly and
severally, and CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware
limited liability company ("CSFB").
W I T N E S S E T H:
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WHEREAS, EFI, the Company, RFI, ERC, jointly and severally, and CSFB
are parties to that certain Loan and Security Agreement dated as of August 25,
1998 (the "Original Bridge Loan Agreement") pursuant to which CSFB agreed to
make a loan to EFI, the Company, RFI and ERC in the maximum principal amount of
$15,000,000 for the purpose of acquiring the outstanding capital stock and
interest of Eastern Resorts Corporation, a Rhode Island corporation, all
pursuant to the terms, provisions, and conditions set forth in the Original
Bridge Loan Agreement and various other documents and instruments (the "Bridge
Loan"), including but not limited to that certain Promissory Note also dated as
of August 25, 1998 executed by EFI, the Company, RFI and ERC in favor or CSFB
(the "Bridge Loan Note") and secured by the Collateral (as such term is defined
in the Original Bridge Loan Agreement);and
WHEREAS, pursuant to that certain Loan Modification Agreement dated as
of December 11, 1998, by and among EFI, the Company, ERC and CSFB, certain
additional amendments and modifications to the Original Bridge Loan Agreement
were made including, without limitation, an extension of the Maturity Date; and
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WHEREAS, pursuant to that certain letter agreement dated November 15,
2000 by and among EFI, RFI, the Company, ERC and CSFB, the Maturity Date of the
Bridge Loan was extended to January 5, 2001; and
WHEREAS, pursuant to that certain letter agreement dated December 21,
2000 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Bridge Loan was extended to January 31, 2001;
and
WHEREAS, pursuant to that certain letter agreement dated January 31,
2001 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Bridge Loan was extended to February 16,
2001; and
WHEREAS, pursuant to that certain letter agreement dated March 22, 2001
by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Bridge Loan was extended to March 30, 2001; and
WHEREAS, pursuant to that certain letter agreement dated March 30, 2001
by and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Bridge Loan was extended to April 20, 2001; and
WHEREAS, the Original Bridge Loan Agreement, as amended and modified by
that certain Loan Modification Agreement dated as of December 11, 1998, by that
certain November 15, 2000 letter agreement, by that certain December 21, 2000
letter agreement, by that certain January 31, 2001 letter agreement, by that
certain March 22, 2001 letter agreement, by that certain March 30, 2001 letter
agreement and by any other amendments and modifications thereto shall be
collectively referred to herein as the "Bridge Loan Agreement."
WHEREAS, the Company, Equivest Finance, Inc., a Florida corporation
("Equivest--Florida"), ERC and CSFB are parties to that certain Loan and
Security Agreement dated as of August 25, 1998 (the "Original Long Wharf Loan
Agreement"), pursuant to which CSFB agreed to make a loan to Company in the
maximum principal amount of $11,500,000, to be guaranteed, jointly and
severally, by Equivest--Florida and ERC, all pursuant to the terms, provisions,
and conditions set forth in such Loan Agreement and various other documents and
instruments (the "Long Wharf Loan"), including but not limited to that certain
Mortgage Promissory Note dated August 25, 1998, made by the Company to the order
of CSFB in the original principal amount of $6,500,000 (the "Mortgage Note"),
that certain Receivables Promissory Note dated August 25, 1998, made by Company
to the order of CSFB in the original principal amount of $5,000,000 (the
"Receivables Note"), and that certain Mortgage, Security Agreement, and
Assignment of Leases and Rents dated August 25, 1998, executed by Company in
favor of CSFB as partial security for the Long Wharf Loan, recorded in the
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Newport Land Evidence Records in Book 821, at Page 342; and
WHEREAS, pursuant to that certain letter agreement dated December 2,
1998, CSFB consented to the reincorporation of Equivest--Florida as a Delaware
corporation and EFI, among other things, agreed that the Original Long Wharf
Loan Agreement and all related documents and instruments to which
Equivest--Florida is a party constitute the legal, valid, and binding
obligations of EFI; and
WHEREAS, pursuant to that certain Loan Modification Agreement dated as
of December 11, 1998, by and among EFI, RFI, the Company, ERC, and CSFB, certain
amendments and modifications to the Original Long Wharf Loan Agreement were made
and the Company executed in favor of CSFB that certain Amended and Restated
Receivables Promissory Note dated December 11, 1998 and that certain Amended and
Restated Mortgage Promissory Note dated December 11, 1998; and
WHEREAS, pursuant to that certain Second Loan Modification Agreement
dated as of June 8, 1999, by and among EFI, the Company, ERC and CSFB, certain
additional amendments and modifications to the Original Long Wharf Loan
Agreement were made, and the Company executed that certain Second Amended and
Restated Mortgage Promissory Note dated June 4, 1999 in favor of CSFB; and
WHEREAS, pursuant to that certain letter agreement dated November 15,
2000 by and among EFI, RFI, the Company, ERC and CSFB, the Maturity Date of the
Long Wharf Loan was extended to January 5, 2001; and
WHEREAS, pursuant to that certain letter agreement dated December 21,
2000 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Long Wharf Loan was extended to January 31,
2001; and
WHEREAS, pursuant to that certain letter agreement dated January 31,
2001 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Long Wharf Loan was extended to February 16,
2001; and
WHEREAS, pursuant to that certain letter agreement dated March 22, 2001
by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Long Wharf Loan was extended to March 30, 2001;
and
WHEREAS, pursuant to that certain letter agreement dated March 30, 2001
by and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Long Wharf Loan was extended to April 20, 2001;
and
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WHEREAS, the Original Long Wharf Loan Agreement, as amended and
modified by that certain December 2, 1998 letter agreement, by that certain Loan
Modification Agreement dated as of December 11, 1998, by that certain Second
Loan Modification Agreement dated as of June 8, 1999, by that certain letter
agreement dated November 15, 2000, by that certain December 21, 2000 letter
agreement, by that certain January 31, 2001 letter agreement, by that certain
March 22, 2001 letter agreement, by that certain March 30, 2001 letter agreement
and by any other amendments and modifications thereto shall be collectively
referred to herein as the "Long Wharf Loan Agreement"; and
WHEREAS, Coconut Malorie has executed that certain Acquisition and
Development Promissory Note dated as of March 26, 1999 in favor of CSFB as
evidence of the loan by CSFB to Coconut Malorie in the maximum principal amount
of $4,521,150 (the "Ocean City Note"), and pursuant to the terms, provisions,
and conditions set forth in Ocean City Note and various other documents and
instruments as such documents or instruments may have been amended or modified
(the "Ocean City Loan"), including but not limited to that certain Acquisition
and Development Loan Agreement dated as of October 24, 1997, by and between RFI
and Coconut Malorie, as secured by that certain Mortgage and Security Agreement
and UCC-1 Financing Statement, dated October 24, 1997, executed by Coconut
Malorie in favor of RFI, recorded in Liber 2445, at Folio 574 of the Land
Records of Worcester County, Maryland, as assigned by RFI to CSFB pursuant to
that certain Assignment of Mortgage and Other Loan Documents dated March 26,
1999 by RFI to and in favor of CSFB, and as guaranteed, jointly and severally,
by EFI and Equivest Maryland pursuant to that certain Guaranty and Subordination
Agreement dated March 26, 1999;
WHEREAS, pursuant to that certain letter agreement dated November 15,
2000 by and among EFI, RFI, the Company, ERC and CSFB, the Maturity Date of the
Ocean City Loan was extended to January 5, 2001; and
WHEREAS, pursuant to that certain letter agreement dated December 21,
2000 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Ocean City Loan was extended to January 31,
2001; and
WHEREAS, pursuant to that certain letter agreement dated January 31,
2001 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the Ocean City Loan was extended to February 16,
2001; and
WHEREAS, pursuant to that certain letter agreement dated March 22, 2001
by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Ocean City Loan was extended to March 30, 2001;
and
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WHEREAS, pursuant to that certain letter agreement dated March 30, 2001
by and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Ocean City Loan was extended to April 20, 2001;
and
WHEREAS, as evidence of the loan by CSFB to Avenue Plaza in the maximum
principal amount of $19,000,000 as the documents or instruments evidencing or
securing such loan may have been amended or modified (▇▇▇ "▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇"),
▇▇▇▇ is the owner and holder of that certain Promissory Note dated December 19,
1997, made by Avenue Plaza to the order of CSFB in the original principal amount
of $19,000,000 (the "Avenue Plaza Note"), which is secured in part by that
certain Act of Mortgage, Security Agreement and Assignment of Leases and Rentals
dated December 19, 1997, executed by Avenue Plaza in favor of CSFB and recorded
in the mortgage office under MIN 447902, and in the conveyance office under CIN
152019, N.A. No. 98-01491, Orleans Parish, Louisiana, together with an
Assignment of Certificates, Permits, Licenses, Approvals, Bonds, and Warranties,
an Assignment of Management Agreement, and an Assignment of Borrower's Rights as
Developer Under Declaration and Bylaws, each of which is dated December 19,
1997, and executed by Avenue Plaza in favor of CSFB, and which is absolutely and
unconditionally guaranteed pursuant to that certain Guaranty and Subordination
Agreement dated December 19, 1997 by Kosmas Group International, Inc., formerly
known as Kosmas Resort Group, Inc. ("KGI"); and
WHEREAS, pursuant to that certain Purchase Agreement dated as of
February 16, 1999, by and among EFI, KGI, and various other parties, KGI agreed
to sell to EFI or its designee all right, title, and interest of KGI in and to
Avenue Plaza, and EFI agreed to purchase or cause the purchase of same from KGI
and, pursuant to that certain Loan Assumption Agreement dated as of March 26,
1999, by and among Credit Suisse First Boston Structured Loan Participations,
Series 1998-P1 Corporation, a Delaware corporation ("CSFB 1998-P1"), EFI,
Equivest Louisiana and Avenue Plaza, (i) CSFB 1998-P1 consented to Equivest
Louisiana's acquisition of all right, title, and interest of KGI in and to
Avenue Plaza, and (ii) EFI, Equivest Louisiana and Avenue Plaza ratified,
reaffirmed and assumed all of the terms, provisions, conditions,
representations, covenants, warranties, responsibilities and obligations under
the Avenue Plaza Loan, as guaranteed by EFI and by Equivest Louisiana pursuant
to that certain Guaranty and Subordination Agreement dated March 26, 1999; and
WHEREAS, pursuant to that certain letter agreement dated December 21,
2000 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB as the then owner and holder of the Avenue Plaza Note, the Maturity
Date of the Avenue Plaza Loan was extended to January 31, 2001; and
WHEREAS, pursuant to that certain letter agreement dated January 31,
2001 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
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and CSFB, the Maturity Date of the Avenue Plaza Loan was extended to February
16, 2001; and
WHEREAS, pursuant to that certain letter agreement dated March 22, 2001
by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Avenue Plaza Loan was extended to March 30, 2001;
and
WHEREAS, pursuant to that certain letter agreement dated March 30, 2001
by and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the Avenue Plaza Loan was extended to April 20, 2001;
and
WHEREAS, CSFB, Bluebeard, Castle, Kosmas Caribbean Holdings Corporation
("KCHC"), KGI, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), in his individual capacity, are
parties to that certain Loan and Security Agreement dated as of July 30, 1998
(the "Original Bluebeard Loan Agreement") pursuant to which CSFB agreed to make
a loan to Bluebeard, Castle, KCHC, KGI and Kosmas in the maximum principal
amount of $31,000,000) (the "Bluebeard Loan"), which is evidenced by that
certain Acquisition/Development Promissory Note dated July 30, 1998, made by
Bluebeard, Castle and KCHC to the order of CSFB in the original principal amount
of $17,000,000 and that certain Receivables Promissory Note dated July 30, 1998,
made by Bluebeard, Castle and KCHC to the order of CSFB in the original
principal amount of $14,000,000 (together, the "Bluebeard Notes") and which is
secured in part by that certain Mortgage, Security Agreement, and Assignment of
Leases and Rents dated July 30, 1998, executed by Castle and Bluebeard in favor
of CSFB and recorded on August 10, 1998, in Book 50G, at Page 127, as Document
No. 3401 in the Office of the Recorder of Deeds for the Judicial District of St.
▇▇▇▇▇▇ and St. ▇▇▇▇, Territory of the United States Virgin Islands (the
"Bluebeard Mortgage"), and which is further secured by a Collateral Assignment
of Construction Contracts, a Collateral Assignment of Architect's and Engineer's
Agreements and Plans and Specifications, a Collateral Assignment of Management
Agreements, a Collateral Assignment of Certificates, Permits, Licenses,
Approvals, Bonds, and Warranties, a Collateral Assignment of Borrowers' Rights
Under the Applicable Declarations and Bylaws, a Collateral Assignment of
Trademarks, Trade Names, Service Marks, Copyrights, and Other Intellectual
Property, and various other documents and instruments, all for the benefit of
CSFB and/or RFI, as appropriate, and their respective successors and assigns;
and
WHEREAS, pursuant to the terms and provisions of that certain
Acquisition/ Development Payment Guaranty dated July 30, 1998, executed by KGI
to and in favor of CSFB, and that certain Receivables Payment Guaranty dated
July 30, 1998 (the "Bluebeard Receivables Guaranty"), executed by KGI to and in
favor of CSFB, KGI absolutely and unconditionally guaranteed and promised to pay
to CSFB or its successors and assigns, any and all principal, interest, and
other amounts of any and every possible character or description due CSFB or its
successors or assigns pursuant to the Bluebeard Notes, the Bluebeard Mortgage,
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or any of the other documents or instruments that evidence and/or secure the
Bluebeard Loan, and to perform fully, completely, and punctually all other
terms, covenants, obligations, and conditions contained therein. All of CSFB's
right, title, and interest in and to the Bluebeard Receivables Guaranty have
been assigned to RFI, pursuant to that certain Loan Assignment Agreement, as
such term is hereinbelow defined; and
WHEREAS, pursuant to that certain Completion Guaranty dated July 30,
1998 (the "Bluebeard Completion Guaranty"), executed by KGI and Kosmas to and in
favor of CSFB, KGI and Kosmas absolutely and unconditionally guaranteed and
promised to pay to CSFB all funds required for the full and final completion of
the Financed Improvements in accordance with the Plans therefor and all
Applicable Laws, together with the ADA Remedial Work (as such terms are defined
in the Bluebeard Completion Guaranty), all in the time frame and manner
prescribed by the Original Bluebeard Loan Agreement; and
WHEREAS, pursuant to that certain Loan Assignment Agreement dated as of
September 18, 1998, by and between CSFB and RFI (the "Loan Assignment
Agreement"), CSFB sold, assigned, transferred, granted, and conveyed unto RFI,
absolutely and unconditionally, all of CSFB's rights, title, and interest in and
to the Receivables Component (as such term is defined in the Original Bluebeard
Loan Agreement) of the Bluebeard Loan; and
WHEREAS, pursuant to that certain Purchase Agreement dated as of
February 16, 1999, by and among EFI, KGI, KCHC, and various other parties, KCHC
agreed to sell to EFI or its designee all issued and outstanding capital stock
of Castle and Bluebeard and, pursuant to that certain Loan Assumption Agreement
dated as of March 30, 1999 by and among CSFB, RFI, EFI, Equivest St. ▇▇▇▇▇▇,
Bluebeard and Castle, (i) CSFB consented to Equivest St. ▇▇▇▇▇▇' acquisition of
all issued and outstanding capital stock of Castle and Bluebeard, and (ii) EFI,
Equivest St. ▇▇▇▇▇▇, Bluebeard and Castle ratified, reaffirmed and assumed all
of the terms, provisions, conditions, representations, covenants, warranties,
responsibilities and obligations under the Bluebeard Loan, as guaranteed by (a)
that certain Completion Guaranty dated as of March 30, 1999 executed by EFI and
Equivest St. ▇▇▇▇▇▇ in favor of CSFB, (b) that certain Acquisition/Development
Payment Guaranty dated as of March 30, 1999 executed by EFI and Equivest St.
▇▇▇▇▇▇ in favor of CSFB, and (c) that certain Receivables Payment Guaranty dated
as of March 30, 1999 executed by EFI and Equivest St. ▇▇▇▇▇▇ in favor of RFI (as
assigned by RFI in favor of CSFB pursuant to that certain Assignment of
Underlying Guaranty dated as of March 30, 1999); and
WHEREAS, the Original Bluebeard Loan Agreement, as amended and modified
pursuant to that certain Loan Assignment Agreement dated as of September 18,
1998, by that certain Loan Assumption Agreement dated as of March 30, 1999, and
7
by any other amendments and modifications thereto, shall be collectively
referred to herein as the "Bluebeard Loan Agreement; and
WHEREAS, CSFB, RFI and EFI are parties to that certain Loan and
Security Agreement dated as of November 14, 1997 (the "Original A&D Loan
Agreement") pursuant to which CSFB agreed to make a loan to RFI in the maximum
principal amount of $30,000,000 for purposes of financing acquisition and
development loans originated by RFI (the "A&D Loan"), which is evidenced by that
certain Promissory Note dated November 14, 1997, made by RFI to the order of
CSFB in the original principal amount of $30,000,000 and which is secured by
various other documents and instruments and which is guaranteed pursuant to that
certain Guaranty dated November 14, 1997 and executed by EFI in favor of CSFB;
and
WHEREAS, pursuant to that certain letter agreement dated November 15,
2000 by and among EFI, RFI, the Company, ERC and CSFB, the Maturity Date of the
A&D Loan was extended to January 5, 2001; and
WHEREAS, pursuant to that certain letter agreement dated December 21,
2000 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the A&D Loan was extended to January 31, 2001;
and
WHEREAS, pursuant to that certain letter agreement dated January 31,
2001 by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana
and CSFB, the Maturity Date of the A&D Loan was extended to February 16, 2001;
and
WHEREAS, pursuant to that certain letter agreement dated March 22, 2001
by and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the A&D Loan was extended to March 30, 2001; and
WHEREAS, pursuant to that certain letter agreement dated March 30, 2001
by and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB, the Maturity Date of the A&D Loan was extended to April 20, 2001; and
WHEREAS, the Original A&D Loan Agreement, as amended and modified by
that certain letter agreement dated November 15, 2000, by that certain December
21, 2000 letter agreement, by that certain January 31, 2001 letter agreement, by
that certain March 22, 2001 letter agreement, by that certain March 30, 2001
letter agreement and by any other amendments and modifications thereto shall be
collectively referred to herein as the "A&D Loan Agreement"; and
WHEREAS, Borrowers, Guarantors and CSFB desire to amend the terms of
the Bridge Loan, the Long Wharf Loan, the Ocean City Loan, the Avenue Plaza
Loan, the Bluebeard Loan, and the A&D Loan (individually, the "Loan" and
collectively, the "Loans") in order to extend the Maturity Date of each Loan and
to otherwise amend the terms, provisions, and conditions of the Bridge Loan
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Agreement, the Long Wharf Loan Agreement, the Ocean City Note, the Avenue Plaza
Note, the Bluebeard Loan Agreement, and the A&D Loan Agreement in the manner
permitted thereby (the Bridge Loan Agreement, the Long Wharf Loan Agreement, the
Ocean City Note, the Avenue Plaza Note, the Bluebeard Loan Agreement, and the
A&D Loan Agreement, together with any and all promissory notes, guaranties,
assignments, mortgages, financing statements, exhibits and all other related
documents or instruments and all amendments or modifications to any of the above
executed in connection therewith shall be referred to herein collectively as the
"Applicable Loan Documents", and references herein to "Loan Documents" shall
mean the relevant Loan Documents for each Loan).
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION 1: GENERAL
1.1 DEFINITIONS. Except as otherwise provided herein to the contrary or
unless the context otherwise requires, all capitalized terms used in this Master
Modification Agreement shall have the meanings ascribed to them in the
Applicable Loan Documents.
1.2 MASTER MODIFICATION CLOSING DATE. As used herein, the "Master
Modification Closing Date" shall mean April 20, 2001, the date of this Master
Modification Agreement.
1.3 AGGREGATE LOAN AMOUNT. As used herein, the "Aggregate Loan Amount"
shall mean the sum of the principal balances outstanding as of Master
Modification Closing Date or from time to time thereafter for the Bridge Loan,
the Long Wharf Loan, the Ocean City Loan, the Avenue Plaza Loan, the Bluebeard
Loan, and the A&D Loan; the Aggregate Loan Amount as of April 17, 2001 is
$38,824,006.87.
1.4 ADDITIONAL LOANS. Attached hereto as Exhibit "A" is a listing of
all loans made by third party lenders to one or more of the Borrowers, each of
which listed loan has an outstanding principal balance in excess of $500,000, as
of the Master Modification Closing Date, which is incorporated herein by this
reference (individually, the "Additional Loan" and collectively, the "Additional
Loans").
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SECTION 2: BRIDGE LOAN
2.1 BORROWER AND LENDER. As of the date hereof, the term "Borrower"
when used with respect to the Bridge Loan or Loan Documents for the Bridge Loan
shall mean the Company, ERC, RFI and EFI collectively, and the term "Lender"
shall mean CSFB, regardless of how "Borrower" and "Lender" may previously have
been defined in any Loan Documents for the Bridge Loan executed prior to the
date hereof.
2.2 MATURITY DATE. The definition of Maturity Date in Section 1.56 of
the Bridge Loan Agreement is hereby deleted and replaced with the following:
1.56 MATURITY DATE. The Loan shall mature and be payable in
full on February 16, 2002 ("Maturity Date") as long as no Default or
Event of Default exists under any loan document or security agreement
with respect to any of the Loans. Notwithstanding the foregoing, (a)
in no event shall the Maturity Date of the Bridge Loan be extended to
a date subsequent to the maturity date of any of the Additional Loans
including, without limitation, any loan or loans from Bank of America
to Borrowers, and (b) if an earlier maturity date or acceleration
event should occur with respect to any of the Additional Loans,
through a default or otherwise, the Maturity Date of the Bridge Loan
will become co-terminus with the maturity date of such other
Additional Loan.
2.3 NOTE. The definition of Note in Section 1.61 of the Bridge Loan
Agreement is hereby deleted and replaced with the following:
1.61 NOTE. That certain Second Amended and Restated
Promissory Note that evidences the Loan, dated as of April 20, 2001,
made and executed by Borrower to the order of Lender and delivered to
Lender concurrently with Borrower's execution of the Master
Modification Agreement, together with any renewals or refinancing
note or notes delivered in substitution therefor or other amendments
or supplements thereto, collectively referred to as the "Note".
SECTION 3: LONG WHARF LOAN
3.1 BORROWER, GUARANTORS AND LENDER. As of the date hereof, the term
"Borrower" when used with respect to the Long Wharf Loan or the Loan Documents
for the Long Wharf Loan shall mean the Company, the term "Guarantors" shall mean
EFI and ERC collectively, and the term "Lender" shall mean CSFB, regardless of
how "Borrower," "Guarantors," and "Lender" may previously have been defined in
any Loan Documents for the Long Wharf Loan executed prior to the date hereof.
3.2 MATURITY DATE. The definition of Maturity Date in Section 1.50 of
the Long Wharf Loan Agreement is hereby deleted and replaced with the following:
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1.50 MATURITY DATE. The Loan shall mature and be payable in
full on February 16, 2002 ("Maturity Date") as long as no Default or
Event of Default exists under any loan document or security agreement
with respect to any of the Loans. Notwithstanding the foregoing, (a)
in no event shall the Maturity Date of the Long Wharf Loan be
extended to a date subsequent to the maturity date of any of the
Additional Loans including, without limitation, any loan or loans
from Bank of America to Borrowers, and (b) if an earlier maturity
date or acceleration event should occur with respect to any of the
Additional Loans, through a default or otherwise, the Maturity Date
of the Long Wharf Loan will become co-terminus with the maturity date
of such other Additional Loan.
3.3 MORTGAGE NOTE. The definition of Mortgage Note in Section 1.56 of
the Long Wharf Loan Agreement is hereby deleted and replaced with the following:
1.56 MORTGAGE NOTE. That certain Third Amended and Restated
Mortgage Promissory Note that evidences the Mortgage Component of the
Loan, dated as of April 20, 2001, in the original principal amount of
SIX MILLION FIVE HUNDRED THOUSAND DOLLARS ($6,500,000), made and
executed by Borrower to the order of Lender and delivered to Lender
concurrently with Borrower's and Guarantors' execution of the Master
Modification Agreement, together with any renewals or refinancing
note or notes delivered in substitution therefor or other amendments
or supplements thereto, collectively referred to as the "Mortgage
Note".
3.4 MORTGAGE PAYMENT GUARANTY. The definition of Mortgage Payment
Guaranty in Section 1.57 of the Long Wharf Loan Agreement is hereby deleted and
replaced with the following:
1.57 MORTGAGE PAYMENT GUARANTY. That certain Amended and
Restated Mortgage Payment Guaranty dated as of April 20, 2001
executed by Guarantors in favor of Lender, pursuant to which the
Guarantors absolutely and unconditionally guarantee payment of any
and all amounts due Lender in connection with the Mortgage Component
of the Loan, pursuant to the Loan Documents, together with any
renewals or amended guaranties delivered in substitution therefor or
other amendments or supplements thereto, collectively referred to as
the "Mortgage Payment Guaranty".
SECTION 4: OCEAN CITY LOAN
4.1 BORROWER, GUARANTOR AND LENDER. As of the date hereof, the term
"Borrower" when used with respect to the Ocean City Loan or the Loan Documents
for the Ocean City Loan shall mean Coconut Malorie, the term "Guarantor" shall
mean EFI and Equivest Maryland collectively, and the term "Lender" shall mean
CSFB, regardless of how "Borrower," "Guarantor" and "Lender" may previously have
been defined in any Loan Documents for the Ocean City Loan executed prior to the
date hereof.
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4.2 AMENDED AND RESTATED ACQUISITION AND DEVELOPMENT PROMISSORY NOTE.
As of the date hereof and in consideration of CSFB's entering this Master
Modification Agreement, Coconut Malorie has executed that certain Amended and
Restated Acquisition and Development Promissory Note which reflects the amended
Maturity Date of February 16, 2002, with respect to the Ocean City Loan.
4.3 AMENDED AND RESTATED GUARANTY AND SUBORDINATION AGREEMENT. As of
the date hereof and in consideration of CSFB's entering this Master Modification
Agreement, EFI and Equivest Maryland have executed that certain Amended and
Restated Guaranty and Subordination Agreement.
SECTION 5: AVENUE PLAZA LOAN
5.1 BORROWER, GUARANTOR AND LENDER. As of the date hereof, the term
"Borrower" when used with respect to the Avenue Plaza Loan or the Loan Documents
for the Avenue Plaza Loan shall mean Avenue Plaza, the term "Guarantor" shall
mean EFI and Equivest Louisiana collectively, and the term "Lender" shall mean
CSFB, regardless of how "Borrower," "Guarantor" and "Lender" may previously have
been defined in any Loan Documents for the Avenue Plaza Loan executed prior to
the date hereof.
5.2 AMENDED AND RESTATED PROMISSORY NOTE. As of the date hereof and in
consideration of CSFB's entering this Master Modification Agreement, Avenue
Plaza has executed that certain Amended and Restated Promissory Note which
reflects the amended Maturity Date of February 16, 2002, with respect to the
Avenue Plaza Loan.
5.3 AMENDED AND RESTATED GUARANTY AND SUBORDINATION AGREEMENT. As of
the date hereof and in consideration of CSFB's entering this Master Modification
Agreement, EFI and Equivest Louisiana have executed that certain Amended and
Restated Guaranty and Subordination Agreement.
SECTION 6: BLUEBEARD LOAN
6.1 BORROWERS, GUARANTOR AND LENDER. As of the date hereof, the term
"Borrowers" when used with respect to the Bluebeard Loan or the Loan Documents
for the Bluebeard Loan shall mean Bluebeard and Castle collectively, the term
"Guarantor" shall mean EFI and Equivest St. ▇▇▇▇▇▇ collectively, and the term
12
"Lender" shall mean CSFB, regardless of how "Borrowers," "Guarantor" and
"Lender" may previously have been defined in any Loan Documents for the
Bluebeard Loan executed prior to the date hereof.
6.2 ACQUISITION/DEVELOPMENT NOTE. The definition of
Acquisition/Development Note in Section 1.2 of the Bluebeard Loan Agreement is
hereby deleted and replaced with the following:
1.2 ACQUISITION/DEVELOPMENT NOTE. That certain Amended and
Restated Acquisition/Development Promissory Note that evidences the
Acquisition/Development Component of the Loan, dated as of April 20,
2001, in the original principal amount of SEVENTEEN MILLION DOLLARS
($17,000,000), made and executed by Borrowers to the order of Lender
and delivered to Lender concurrently with Borrowers' and Guarantor's
execution of the Master Modification Agreement, together with any
renewals or refinancing note or notes delivered in substitution
therefor or other amendments or supplements thereto, collectively
referred to as the "Acquisition/Development Note".
6.3 ACQUISITION/DEVELOPMENT PAYMENT GUARANTY. The definition of
Acquisition/Development Payment Guaranty in Section 1.3 of the Bluebeard Loan
Agreement is hereby deleted and replaced with the following:
1.3 ACQUISITION/DEVELOPMENT PAYMENT GUARANTY. That certain
Amended and Restated Acquisition/Development Payment Guaranty dated
as of April 20, 2001 executed by Guarantor in favor of Lender,
pursuant to which Guarantor absolutely and unconditionally guarantees
payment of any and all amounts due Lender in connection with the
Acquisition/Development Component of the Loan, pursuant to the Loan
Documents, together with any renewals or amended guaranties delivered
in substitution therefor or other amendments or supplements thereto,
collectively referred to as the "Acquisition/Development Payment
Guaranty".
6.4 MATURITY DATE. The definition of Maturity Date in Section 1.61 of
the Bluebeard Loan Agreement is hereby deleted and replaced with the following:
1.61 MATURITY DATE. The Loan shall mature and be payable in
full on February 16, 2002 ("Maturity Date") as long as no Default or
Event of Default exists under any loan document or security agreement
with respect to any of the Loans. Notwithstanding the foregoing, (a)
in no event shall the Maturity Date of the Bluebeard Loan be extended
to a date subsequent to the maturity date of any of the Additional
Loans including, without limitation, any loan or loans from Bank of
America to Borrowers, and (b) if an earlier maturity date or
acceleration event should occur with respect to any of the Additional
Loans, through a default or otherwise, the Maturity Date of the
Bluebeard Loan will become co-terminus with the maturity date of such
other Additional loan.
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SECTION 7: A&D LOAN
7.1 BORROWER, GUARANTOR AND LENDER. As of the date hereof, the term
"Borrower" when used with respect to the A&D Loan or the Loan Documents for the
A&D Loan shall mean RFI, the term "Guarantor" shall mean EFI, and the term
"Lender" shall mean CSFB, regardless of how "Borrower," "Guarantor" and "Lender"
may previously have been defined in any Loan Documents for the A&D Loan executed
prior to the date hereof.
7.2 GUARANTY. The definition of Guaranty in Section 1.48 of the A&D
Loan Agreement is hereby deleted and replaced with the following:
1.48 GUARANTY. That certain Amended and Restated Guaranty
dated as of April 20, 2001 executed by Guarantor and delivered to
Lender concurrently with Borrower's and Guarantor's execution and
delivery of the Master Modification Agreement, together with any
renewals or amended guaranties delivered in substitution therefor or
other amendments or supplements thereto, collectively referred to as
the "Guaranty". The Guaranty shall be the absolute and unconditional
guaranty of payment and performance of the Loan and all amounts
secured by or under the Loan Documents.
7.3 MATURITY DATE. The definition of Maturity Date in Section 1.65 of
the A&D Loan Agreement is hereby deleted and replaced with the following:
1.65 MATURITY DATE. The Loan shall mature and be payable in
full on February 16, 2002 ("Maturity Date") as long as no Default or
Event of Default exists under any loan document or security agreement
with respect to any of the Loans. Notwithstanding the foregoing, (a)
in no event shall the Maturity Date of the A&D Loan be extended to a
date subsequent to the maturity date of any of the Additional Loans
including, without limitation, any loan or loans from Bank of America
to Borrowers, and (b) if an earlier maturity date or acceleration
event should occur with respect to any of the Additional Loans,
through a default or otherwise, the Maturity Date of the A&D Loan
will become co-terminus with the maturity date of such other
Additional Loan.
7.4 NOTE. The definition of Note in Section 1.69 of the A&D Loan
Agreement is hereby deleted and replaced with the following:
1.69 NOTE. That certain Amended and Restated Promissory
Note that evidences the Loan, dated as of April 20, 2001, made and
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executed by Borrower to the order of Lender and delivered to Lender
concurrently with Borrower's and Guarantor's execution of the Master
Modification Agreement, together with any renewals or refinancing
note or notes delivered in substitution therefor or other amendments
or supplements thereto, collectively referred to as the "Note".
7.5 SUBSTITUTION OF COLLATERAL. Notwithstanding anything to the
contrary set forth herein, in the A&D Loan Agreement or in the Loan Documents
for the A&D Loan, CSFB's substitution of collateral pursuant to those two
separate Assignments of Mortgage and Other Loan Documents and that certain
Assignment of Deed of Trust and Other Loan Documents executed as of the date
hereof in relation to Wachesaw Resort, Coconut Palms Resort and Riverside
Resort, respectively (the "Assignments of Mortgage"), and pursuant to those
three separate Assignments of Underlying Guaranty executed as of the date hereof
in relation to Wachesaw Resort, Coconut Palms Resort and Riverside Resort,
respectively (the "Assignments of Guaranty"), shall in no way diminish or
otherwise affect CSFB's rights and remedies under the A&D Loan Agreement or the
Loan Documents for the A&D Loan, and such rights and remedies shall continue in
full force and effect and the validity and enforceability of the A&D Loan
Agreement or the Loan Documents for the A&D Loan shall not be affected by the
terms of the Assignments of Mortgage or by the terms of the Assignments of
Guaranty.
SECTION 8: ADDITIONAL TERMS
8.1 COMMITMENT FEE. In consideration of entering this Master
Modification Agreement, CSFB has earned a commitment fee equal to one percent
(1%) of the Aggregate Loan Amount as of the Master Modification Closing Date,
which shall be payable in three equal installments; the first one-third (1/3)
payment is due on the Master Modification Closing Date, the second one-third
(1/3) payment is due thirty (30) days after the Master Modification Closing
Date; and the final one-third (1/3) payment is due sixty (60) days after the
Master Modification Closing Date. Failure to make any required payments set
forth herein shall constitute an Event of Default under each of the Loans.
8.2 WARRANTS. As of the date hereof, EFI has issued warrants to CSFB to
purchase 200,000 shares of common stock of EFI with an exercise price equal to
the VWAP as of the Master Modification Closing Date and an expiration date of
five (5) years after the Master Modification Closing Date. As of the date
hereof, EFI has issued warrants to CSFB to purchase 200,000 shares of common
stock of EFI with an exercise price of VWAP plus $.50 per share and an
expiration date of five (5) years after the Master Modification Closing Date. As
used in this Master Modification Agreement, "VWAP" shall mean the
volume-weighted average trading price of the EFI common stock twenty (20)
business days preceding a particular measuring date. A form of the Warrant
Agreement is attached hereto as Exhibit "B" and incorporated herein by this
reference.
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8.3 ADDITIONAL CONSIDERATION. If the Aggregate Loan Amount is not paid
in full by the Maturity Date of each of the Loans as set forth hereunder, EFI
shall issue to CSFB $500,000 in EFI common stock valued at the VWAP as of such
Maturity Date; provided, however, if the Aggregate Loan Amount outstanding at
the Maturity Date of each of the Loans as set forth hereunder is less than $10
million, EFI will pay CSFB in cash an amount equal to 1% of such Aggregate Loan
Amount as of such Maturity Date. In such event, EFI shall not be obligated to
pay CSFB $500,000 in EFI common stock valued at the VWAP as of such Maturity
Date.
8.4 POTENTIAL SALE OF WASHINGTON, DC PROPERTY. EFI and EFI DC have
offered to sell the property owned by EFI DC located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. (the "DC Property"). Upon the consummation and
closing of such sale, EFI and EFI DC agree to cause any escrow agent or title
company responsible for such closing to remit directly to CSFB an amount of
proceeds equal to $2,500,000 (regardless of the gross purchase price or net
proceeds) in return for satisfaction and discharge of the CSFB first mortgage
encumbering the DC Property ("DC Property Proceeds"). CSFB will apply such DC
Property Proceeds to the Loan or Loans then outstanding at the time such DC
Property Proceeds are received by CSFB; provided, however, that if any amount is
outstanding with respect to the Bridge Loan at the time such DC Property
Proceeds are received by CSFB, the DC Property Proceeds will be used initially
to pay off the Bridge Loan in full and any additional DC Property Proceeds will
be applied by CSFB to reduce the balance of a Loan or Loans as set forth and in
accordance with the listing attached hereto as Exhibit "C" and incorporated
herein by this reference. CSFB reserves the right at any time to amend the order
of payoff of the Loans listed on Exhibit "C" in which case CSFB shall provide a
revised and updated list of Loans, outstanding balances and payoff priority to
Borrowers and CSFB's servicing agent at least thirty (30) days prior to any
change in such list. It is expressly understood and agreed that, upon the
receipt by CSFB of all sums due and owing to CSFB under the Bridge Loan or any
other Loan or Loans, CSFB shall issue to the applicable Borrower a full
satisfaction and discharge of applicable loan documentation, thereby releasing
any liens or security interests in favor of CSFB with respect to the related
collateral securing such paid off Loan or Loans.
8.5 DIRECT ASSIGNMENT OF NOTES AND MORTGAGES. CSFB, EFI and RFI agree
that with respect to the A&D Loan, the parties will terminate the collateral
assignments and related security documents with respect to each of the remaining
RFI loans to various underlying borrowers which loans have been pledged and
assigned to CSFB by RFI as collateral for the A&D Loan ("Underlying A&D Loan" or
"Underlying A&D Loans") and RFI shall directly assign to CSFB the promissory
note evidencing each such Underlying A&D Loan and the corresponding mortgage
(encumbering Coconut Palms, Riverside Suites and ▇▇▇▇▇▇▇▇▇ at Wachecaw timeshare
resorts, respectively) and financing statements and all related loan and
16
security documents for each Underlying A&D Loan so that CSFB shall have as its
collateral for each Underlying A&D Loan a promissory note for the full amount of
such loan and corresponding mortgage encumbering each timeshare resort from each
underlying borrower directly assigned to CSFB by RFI. Notwithstanding the
foregoing, assignments to CSFB shall be subject to any residual collateral
interest of RFI attaching to any Underlying A&D Loan prior to such assignment
and, upon receipt by CSFB of all sums due and owing to CSFB under each assigned
Underlying A&D Loan, CSFB shall re-assign all rights under such Underlying A&D
Loan to RFI and thereby release any and all collateral and rights securing such
paid off Underlying A&D Loan.
8.6 LEGAL FEES. EFI agrees to reimburse CSFB on the Master Modification
Closing Date for its legal expenses in negotiating and documenting the term
sheet and this Master Modification Agreement (including any work performed
subsequent to the date hereof relating to the terminations and assignments
provided for under Section 8.5 directly above) in an amount not to exceed
$50,000 in fees, plus reimbursable expenses incurred by Holland & Knight LLP.
8.7 MONTHLY AMORTIZATION. EFI agrees to make monthly amortization
payments to CSFB on the seventeenth (17th) day of each month according to
Exhibit "D" attached hereto and incorporated herein by this reference. CSFB
shall apply such funds initially to reduce and pay off the Bridge Loan in full
and then to reduce the balance of a Loan or Loans in accordance with Exhibit "C"
attached hereto, as such exhibit may be amended from time to time. Failure to
make any scheduled monthly amortization payment shall constitute an Event of
Default under each of the Loans.
8.8 INFUSION OF FUNDS. EFI will use its best efforts to refinance each
of the Loans in order to accelerate the paydowns to CSFB. In the event EFI is
successful in raising additional funds through a debt offering (not including
warehouse or receivables lines of credit, mortgage liens or any refinancing),
80% of the proceeds of such offering shall be payable to CSFB to reduce the
balance of a Loan or Loans in accordance with Exhibit "C" attached hereto, as
such exhibit may be amended from time to time.
8.9 CROSS-COLLATERALIZATION AND CROSS DEFAULT. All of the Loans shall
be cross-defaulted and cross-collateralized. Each Borrower hereby acknowledges
and agrees that:
(a) Any Event of Default with respect to one or more of the
Loans shall constitute an Event of Default under each of the
remaining Loans and Loan Documents, thereby entitling CSFB to
exercise any or all legal and equitable rights and remedies available
to CSFB, whether pursuant to the Applicable Loan Documents or by
operation of law;
(b) All liens, pledges, assignments, mortgages and security
interests granted by any Borrower in favor of CSFB which constitute
17
Collateral for each of the Loans shall constitute Collateral for each
of the remaining Loans and for all obligations owed by any Borrower
to CSFB; provided, however, that in the event any Loan is paid in
full, CSFB, as a condition to such repayment, shall discharge the
mortgage and any related security documents for such Loan at the time
of such repayment.
8.10 ADDITIONAL LOANS. Borrowers hereby represent, warrant and covenant
to CSFB that none of Borrowers or any subsidiary or affiliate thereof is
obligated or liable in any way for the repayment of any outstanding indebtedness
to any CSFB, under any applicable loan documents or security agreements with
respect to any Additional Loans, pursuant to which (i) a default or event of
default currently exists, or (ii) a default or event of default will exist with
the passage of time between the date hereof and February 16, 2002. In the event
any of the Borrowers fail to comply with this provision such that a default or
event of default exists or arises pursuant to any loan documents or security
agreements, with respect to any Additional Loans, including, without limitation,
any loan document or security agreement of Borrowers which matures prior to
February 16, 2002, then such occurrence shall constitute an Event of Default
under each of the Loan Documents evidencing the Loans, thereby entitling CSFB to
exercise any and all legal and equitable rights and remedies available to it
thereunder.
Borrower's breach of a covenant, representation or warranty made under
an Additional Loan shall constitute an Event of Default under the Loans.
8.11 MONTHLY PAYDOWN REPORT. On or before the 15th of each calendar
month, Borrowers shall provide both to CSFB and to Borrower's servicing agents
for the Loans a monthly report in the form attached hereto as Exhibit "E" of the
daily paydowns and remaining inventory at each of the resorts which in any way
secure any of the Loans (the "Monthly Paydown Report").
8.12 PAYMENT DEFAULT. Borrowers agree to notify CSFB in writing of any
failure by Borrowers to make any required payment to any lender on the date such
payment is due to such lender pursuant to such lender's loan documents or
security agreements, either during the term of the loan or at the loan's
maturity ("Payment Default"). Such notice shall be hand-delivered at the address
set forth above or delivered by Facsimile (212-325-6540) to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at
CSFB immediately after such Payment Default occurs. In the event Borrowers have
cure rights under any loan document or security agreement with respect to any
such Payment Default, Borrowers shall reference such cure rights in this written
notice as well as providing as part of such written notice an explanation of how
Borrowers intend to cure such Payment Default.
8.13 CSFB COMPLIANCE. Borrowers and Guarantors hereby acknowledge and
represent that CSFB has complied fully with all of its obligations under the
Loans and related Applicable Loan Documents through the date hereof and is not
currently in default thereunder.
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8.14 ACKNOWLEDGEMENT. Borrowers and Guarantors hereby acknowledge and
represent that no action by CSFB hereunder will amend, modify, waive, release or
otherwise prejudice CSFB's rights and remedies under the Loans or any of
Borrowers' or Guarantors' obligations under the Applicable Loan Documents,
except as specifically provided herein.
8.15 AUTHORITY.
a. As of the date hereof, each Borrower and Guarantor is duly
organized, validly existing, and in good standing under the laws of the state in
which it was established and in every other jurisdiction in which Borrower or
Guarantor conducts business.
b. The execution, delivery, and performance by each Borrower and
Guarantor of this Master Modification Agreement and all documents and
instruments executed by each Borrower and Guarantor contemporaneously herewith
has been duly authorized by all necessary corporate action by each Borrower and
Guarantor and does not and will not (I) violate any provision of the certificate
or articles of incorporation, bylaws, or any agreement, statute, ordinance,
rule, regulation, order, writ, judgment, injunction, decree, determination, or
award presently in effect to which such Borrower and Guarantor is a party or is
subject; (ii) result in, or require the creation or imposition of, any lien upon
or with respect to any asset of such Borrower or Guarantor other than liens in
favor of CSFB; or (iii) result in a breach of, or constitute a default by such
Borrower or Guarantor under, any indenture, loan, or credit agreement or any
other contract, agreement, document, instrument, or certificate to which such
Borrower or Guarantor is a party or by which each of them or any of their assets
are bound or affected.
c. No approval, authorization, order, license, permit, franchise, or
consent of, or registration, declaration, qualification, or filing with, any
governmental authority or other person, including, without limitation, each
applicable governmental authority, and the applicable condominium owners'
associations, is required in connection with the execution, delivery, and
performance by Borrowers or Guarantors of the Loans, as modified hereby.
8.16 RATIFICATION BY BORROWERS AND GUARANTORS. By the execution of this
Master Modification Agreement in the spaces provided below, each of Borrowers
and Guarantors agree to the terms, provisions, and conditions set forth herein
and acknowledges that except as expressly provided herein, all documents and
instruments that evidence, secure, or otherwise pertain to the Bridge Loan, the
Long Wharf Loan, the Ocean City Loan, the Avenue Plaza Loan, the Bluebeard Loan,
and the A&D Loan, as previously amended or modified, shall remain legally
binding upon, and fully enforceable by CSFB against each of the Borrowers and
Guarantors.
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8.17 ADDITIONAL ACKNOWLEDGEMENTS. With the execution of this Master
Modification Agreement:
(a) Borrowers and Guarantors do hereby acknowledge, confirm and agree
to the prompt and immediate payment of all sums due CSFB from Borrowers and
Guarantors and of all indebtedness of Borrowers and Guarantors to CSFB, and for
the immediate performance and prompt compliance by Borrowers and Guarantors of
all obligations of Borrowers and Guarantors to CSFB.
(b) Borrowers and Guarantors do hereby waive, discharge and release
forever any and all existing claims, counterclaims, defenses, demands, and
rights of set-off that it or they may presently have or may previously have had
against CSFB with respect to or arising in connection with any of the Loans or
with regard to Applicable Loan Documents as modified hereby, or which may affect
the validity or enforceability by CSFB of its various rights and remedies under
the Applicable Loan Documents, and each further acknowledges and agrees that the
waiver, discharge and release herein contained represent an essential part of
the consideration bargained for and received by CSFB in consideration of its
agreements hereunder.
(c) Borrowers and Guarantors represent and warrant that the Applicable
Loan Documents, as modified herein, constitute a good and valid lien on the
collateral as more particularly described in the applicable Loan Agreement and
in the Applicable Loan Documents.
(d) As additional consideration for CSFB's agreements hereunder, each
Borrower does hereby reconfirm and does re-grant to CSFB a security interest in
the personal property making up CSFB's Collateral, as security for all
indebtedness now or hereafter due from Borrowers to CSFB under the applicable
Loan Agreement, the Applicable Loan Documents and the Collateral for the Loans.
(e) The terms, conditions, covenants, and agreements hereof shall be
binding upon the heirs, personal representatives, successors, and assigns of the
parties hereto and shall inure to the benefit of the successors and assigns of
CSFB.
(f) Borrowers hereby acknowledge that under no circumstances is CSFB
obligated to make additional financing available, for any purpose.
(g) This Master Modification Agreement shall be governed by and shall
be construed in accordance with the laws of the State of New York.
(h) Whenever the singular number is used herein, the same shall include
the plural, and the masculine and/or feminine and the natural and/or artificial
persons shall include all genders, whenever and wherever the context so requires
or admits.
20
(i) CSFB may, at any time and from time to time, waive any one or more
of the provisions of this Master Modification Agreement, but any such waiver
shall be deemed to be made in pursuance of this Master Modification Agreement
and not in modification thereof, and any such waiver in any instance or under
any particular circumstances shall not be considered a waiver of such condition
in any other instance or other circumstances.
(j) Any waiver or modification of the terms of this Master Modification
Agreement by CSFB shall be in writing and shall be signed by an authorized
officer of CSFB. No delay or omission of the part of CSFB in exercising any
right hereunder shall operate as a waiver of that right or of any other right
thereunder or hereunder.
(k) Time is of the essence under this Master Modification Agreement
with respect to each Borrower's and Guarantor's performance hereunder.
(l) In the event any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall, at the option of
the CSFB, not affect any provisions herein, but this Master Modification
Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
(m) In the event governmental entities, agencies or departments
determine that this Master Modification Agreement requires that additional
documentary or intangible stamps taxes are necessary, Borrowers hereby agree to
immediately pay such taxes. Borrowers shall further pay any interest or
penalties which may accrue due to the requirement of additional documentary or
intangible stamp taxes and shall indemnify, defend and save and hold harmless
CSFB from and against any and all claims or liabilities arising from the
requirements of such additional taxes. Failure on the part of Borrowers to pay
these additional taxes when due shall constitute an Event of Default under the
Applicable Loan Documents.
(n) Borrowers hereby acknowledge, confirm and agree that the
consideration that Borrowers are receiving from CSFB under this Master
Modification Agreement constitutes reasonably equivalent value and valuable
consideration in exchange for the consideration that CSFB is receiving from
Borrowers under this Master Modification Agreement.
(o) Borrowers do hereby acknowledge, confirm and agree that CSFB is
proceeding in good faith and are receiving the consideration granted to CSFB
hereunder for value and in good faith.
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(p) Borrowers and Guarantors do hereby acknowledge, confirm and agree
that CSFB reserves all rights and remedies under the Applicable Loan Documents
and this, Master Modification Agreement and as provided by applicable state and
federal law.
8.18 WAIVER OF JURY TRIAL. CSFB, BORROWERS AND GUARANTORS HEREBY
KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS MASTER MODIFICATION AGREEMENT AND ANY AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OR CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE CSFB ENTERING INTO THIS
MASTER MODIFICATION AGREEMENT.
8.19 MISCELLANEOUS.
a. NO OTHER CHANGES. Except as expressly set forth herein, each and
every term, provision, and condition contained in the Loans and related
documents, including all exhibits and schedules thereto and all of CSFB's rights
and remedies thereunder, shall remain unchanged and in full force and effect
following the Master Modification Closing Date.
b. INCONSISTENCIES. The terms of this Master Modification Agreement
shall control and prevail in the event of any conflict or inconsistency between
any of the Applicable Loan Documents and this Master Modification Agreement.
c. COUNTERPARTS. This Master Modification Agreement may be executed in
identical counterparts, each of which shall be deemed an original for any and
all purposes and all of which, collectively, shall constitute one and the same
instrument.
d. AUDITS. Notwithstanding anything to the contrary set forth in any
Applicable Loan Documents, Borrowers shall permit CSFB to perform on-site audits
of Borrower's books and records relating to any of the Loans.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNTURES BEGIN ON FOLOWNG PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Master
Modification Agreement to be duly executed and delivered as of the date first
above written.
BORROWERS:
EQUIVEST FINANCE, INC. RESORT FUNDING, INC.
By:____________________________ By:_____________________________
Name: _________________________ Name: __________________________
Its:____________________________ Its:_____________________________
EASTERN RESORTS COMPANY, LLC EASTERN RESORTS CORPORATION
By:_____________________________ By:_____________________________
Name: __________________________ Name: __________________________
Its:_____________________________ Its:_____________________________
OCEAN CITY COCUNUT MALORIE BLUEBEARD'S CASTLE, INC.
RESORT, INC.
By:_____________________________ By:_____________________________
Name: __________________________ Name: __________________________
Its:_____________________________ Its:_____________________________
AVENUE PLAZA LLC CASTLE ACQUISITION, INC.
By:_____________________________ By:_____________________________
Name: __________________________ Name: __________________________
Its:_____________________________ Its:_____________________________
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EQUIVEST WASHINGTON, INC.
By:_____________________________
Name: __________________________
Its:_____________________________
GUARANTORS
EQUIVEST FINANCE, INC. EQUIVEST LOUISIANA, INC.
By:_____________________________ By:_____________________________
Name: _________________________ Name: __________________________
Its:_____________________________ Its:_____________________________
EQUIVEST ST. ▇▇▇▇▇▇, INC. EQUIVEST MARYLAND, INC.
By:_____________________________ By:_____________________________
Name: _________________________ Name: __________________________
Its:_____________________________ Its:_____________________________
CSFB
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By:_____________________________
Name: __________________________
Its:_____________________________
24
EXHIBIT "A"
ADDITIONAL LOANS
25
EXHIBIT "B"
FORM WARRANT AGREEMENT
26
EXHIBIT "C"
LOAN BALANCES
LISTING OF CSFB LOANS
(BALANCE OUTSTANDING AND ORDER OF PAYOFF)
LOAN BALANCE AS OF
04/17/01
1. EASTERN RESORTS $ 1,894,132.29
2. ST ▇▇▇▇▇▇ $ 11,688,532.12
▇. ▇▇▇▇▇▇ ▇▇▇▇▇ $ 12,884,335.00
4. COCONUT PALMS IV $ 5,070,903.00
5. COCONUT MALORIE $ 3,431,147.62
6. RIVERSIDE SUITES $ 2,684,522.75
7. ▇▇▇▇▇▇▇▇▇ AT WACHESAW $ 878,557.49
8. LONG WHARF $ 291,876.60
-----------------
$ 38,824,006.87
=================
27
EXHIBIT "D"
AMORTIZATION SCHEDULE
28
EXHIBIT "E"
FORM OF MONTHLY PAYDOWN REPORT
29