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EPIC RESORTS, LLC
EPIC CAPITAL CORP.
as Issuers,
The Subsidiary Guarantors Named Herein or
which become a party pursuant to Article 10 hereof
and
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee
$130,000,000
13% Senior Secured Redeemable Notes Due 2005, Series A
13% Senior Secured Redeemable Notes Due 2005, Series B
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 3, 1999
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THIS SECOND SUPPLEMENTAL INDENTURE (the "SECOND SUPPLEMENTAL
INDENTURE"), dated as of February 3, 1999, between EPIC RESORTS, LLC, a
Delaware limited liability company ("EPIC"), EPIC CAPITAL CORP., a Delaware
corporation ("CAPITAL CORP.", and together with Epic, the "ISSUERS"), the
Subsidiary Guarantors named on the Signature Page hereto (the "SUBSIDIARY
GUARANTORS") and UNITED STATES TRUST COMPANY OF NEW YORK, a banking
corporation organized and existing under the laws of the State of New York,
in its capacity as trustee (the "TRUSTEE").
RECITALS:
A. The Issuers, the Subsidiary Guarantors and the Trustee entered into
that certain Indenture, dated as of July 8, 1998 (the "ORIGINAL INDENTURE")
and supplemented on January 7, 1999 (the "FIRST SUPPLEMENTAL INDENTURE," and
together with the Original Indenture, the "INDENTURE").
B. Epic has chosen to convert some of its timeshare operations into a
vacation club system. Under Epic's current timeshare operations, timeshare
interests constituting actual undivided interests in specific units at each
resort location ("Real Property Timeshare Interests") are sold to purchasers,
and the purchaser receives a deed evidencing the purchaser's undivided
interest in the unit and the resort. Prior to the time the Real Property
Timeshare Interests are sold, the Trustee holds a mortgage on the Real
Property Timeshare Interests. Under the vacation club system, units at
Epic's resorts will from time to time be conveyed, prior to sale of any
timeshare interests therein to customers, to Epic Vacation Club, a Delaware
nonprofit corporation (the "Vacation Club"), which at all times will continue
to own and hold the entire legal title thereto; however, pursuant to a
declaration executed by the transferring Subsidiary Guarantor and the
Vacation Club, all units transferred to the Vacation Club will be subjected
to a timeshare regime wherein the right to use and occupy those units will be
evidenced by membership interests in the Vacation Club ("Club Membership
Interests") constituting personal property rather than by Real Property
Timeshare Interests. In consideration for conveyance of units to it, the
Vacation Club will transfer to the transferring Subsidiary Guarantor the Club
Membership Interests allocable to such units. The transferring Subsidiary
Guarantor will then own and sell the Club Membership Interests rather than
Real Property Timeshare Interests. Prior to conveyance of units to the
Vacation Club, the Trustee will maintain its mortgage on those units. As a
result, the Trustee's lien on the units deeded to the Vacation Club must be
released prior to the transfer of those units into the Vacation Club. The
Trustee will maintain its secured position through the procedures set forth
in Section 11.03 of the Indenture, as amended by the Second Supplemental
Indenture, whereby the Trustee will be granted a security interest in the
Club Membership Interests that the transferring Subsidiary Guarantor receives
from the Vacation Club. This Second Supplemental Indenture will amend the
Indenture to permit Epic to organize and operate the Vacation Club as
described above.
C. The amendments to the Indenture as hereinafter set forth are
permitted under Section 9.01(a)(vii) and 9.01(a)(x) of the Indenture without
the consent of any Securityholder. The Issuers have delivered, or caused to
be delivered to the Trustee, an Opinion of Counsel to that effect.
D. This Second Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuers and the Subsidiary
Guarantors.
E. The Issuers have delivered, or caused to be delivered to the
Trustee, an Officer's Certificate and an Opinion of Counsel stating that all
conditions precedent and covenants, if any, provided for in the Indenture
relating to this Second Supplemental Indenture have been satisfied.
AGREEMENT:
The Issuers, the Subsidiary Guarantors and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective Holders
from time to time of the Securities as follows:
SECTION 1. DEFINITIONS. Capitalized terms used in this Second
Supplemental Indenture and not otherwise defined herein have the meanings
given them in the Indenture.
SECTION 2. AMENDMENTS.
2.1 The definition of Asset Disposition in Section 1.01 of the
Indenture is amended and restated as follows:
"ASSET DISPOSITION" means any sale, lease, transfer, issuance or other
disposition (or series of related sales, leases, transfers, issuances, or
dispositions that are part of a common plan) of shares of Capital Stock of
(or any other equity interests in) a Restricted Subsidiary (other than
directors' qualifying shares) or of any other property or other assets
(each referred to for the purposes of this definition as a "disposition")
by the Company or any of its Restricted Subsidiaries, including any
disposition by means of a merger, consolidation or similar transaction)
other than (i) a Restricted Subsidiary to a Wholly-Owned Subsidiary, (ii) a
sale, transfer or disposition in the ordinary course of business of
Vacation Ownership Interests or Vacation Ownership Interests Receivables
(including, without limitation, direct sales to financial institutions, and
sales or transfers in connection with securitization transactions in the
ordinary course of business) and transfers of real and personal property
from a Restricted Subsidiary to the Vacation Club provided that the
transferor retains or immediately receives from the Vacation Club the
entirety of the Vacation Ownership Interests allocable to such transferred
property, (iii) a disposition of obsolete or worn out equipment or
equipment that is no longer useful in the conduct of the business of the
Company and its Restricted Subsidiaries and that is disposed of in each
case in the ordinary course of business, (iv) dispositions of property for
net proceeds which, when taken collectively with the net proceeds of any
other such dispositions under this clause (iv) that were consummated since
the beginning of the calendar year in which such disposition is
consummated, do not exceed $1.0 million, (v) transactions permitted under
Section 5.01 hereunder; and (vi) Permitted Investments. Notwithstanding
anything to the contrary contained above, a Restricted Payment made in
compliance with Section 4.07 hereunder shall not constitute an Asset
Disposition except for purposes of determinations of the Consolidated
Coverage Ratio.
2.2 Section 1.01 of the Indenture is amended to include the following
definition:
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"CLUB MEMBERSHIP INTEREST" means an interest evidencing the right to use or
occupy units in any resort subject to the Vacation Club.
2.3 Section 1.01 of the Indenture is amended to include the following
definition:
"CLUB SECURITY AGREEMENT" means a Vacation Club Security Agreement (a form
of which is attached hereto as Exhibit J) between the Issuers, the
Subsidiary Guarantors and the Trustee, whereby the Trustee will receive a
security interest in the Vacation Ownership Interests in the Vacation Club
owned, from time to time, by the Subsidiary Guarantors prior to their sale
in accordance with the terms of this Indenture. The form of Club Security
Agreement attached hereto as Exhibit J is subject to modification according
to the local laws and regulations of the jurisdiction in which the
applicable resort is located.
2.4 The definition of Collateral Documents in Section 1.01 of the
Indenture is amended and restated as follows:
"COLLATERAL DOCUMENTS" means each Mortgage (a form of which is attached
hereto as Exhibit E), the Security Agreement (a form of which is attached
hereto as Exhibit G), the Escrow and Disbursement Agreement (a form of
which is attached hereto as Exhibit H), the Club Security Agreements (a
form of which is attached hereto as Exhibit J) and any other agreements
creating a Lien in favor of the Trustee securing the Securities.
2.5 The definition of Permitted Investment in Section 1.01 of the
Indenture is amended and restated as follows:
"PERMITTED INVESTMENT" means an Investment by the Company or any of its
Restricted Subsidiaries in (i) a Wholly-Owned Subsidiary of the Company;
PROVIDED, HOWEVER, that the primary business of such Wholly-Owned
Subsidiary is a Permitted Business and upon the making of such Investment,
such Person becomes a Restricted Subsidiary; (ii) another Person if as a
result of such Investment such other Person becomes a Wholly-Owned
Subsidiary of the Company or is merged or consolidated with or into, or
transfers or conveys all or substantially all its assets to, the Company or
a Wholly-Owned Subsidiary of the Company and upon the making of such
Investment, such Person becomes a Restricted Subsidiary; PROVIDED, HOWEVER,
that in each case such Person's primary business is a Permitted Business;
(iii) Temporary Cash Investments; (iv) a Receivables Subsidiary or, solely
with respect to the transfer of real and personal property by a Restricted
Subsidiary to the Vacation Club as to which the transferor retains or
obtains simultaneously with such transfer the corresponding Vacation
Ownership Interests, the Vacation Club; (v) payroll, travel and similar
advances to cover matters that are expected at the time of such advances
ultimately to be treated as expenses for accounting purposes and that are
made in the ordinary course of business; (vi) loans and advances to
employees made in the ordinary course of business consistent with past
practices of the Company or such Restricted Subsidiary in an aggregate
amount outstanding at any one time not to exceed $250,000 to any one
employee or $1.0 million in the aggregate; (vii) stock, obligations or
securities received in settlement of debts created in the ordinary course
of business and owing to the Company or any of its Restricted Subsidiaries
or in satisfaction of judgments or claims; (viii) Persons to the extent
such Investment is
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received by the Company or any Restricted Subsidiary as consideration
for asset dispositions effected in compliance with Section 4.10; (ix)
prepayments and other credits to suppliers made in the ordinary course
of business consistent with the past practices of the Company and its
Restricted Subsidiaries; and (x) Investments in connection with pledges,
deposits, payments or performance bonds made or given in the ordinary
course of business in connection with or to secure statutory, regulatory
or similar obligations, including obligations under health, safety or
environmental obligations.
2.6 Section 1.01 of the Indenture is amended to include the following
definition:
"PLEDGED VACATION OWNERSHIP INTERESTS" means the Vacation Ownership
Interests at the resorts owned or developed by the Issuers that are subject to
the Collateral Documents.
2.7 The definition of Vacation Ownership Interests in Section 1.01 of the
Indenture is amended and restated as follows:
"VACATION OWNERSHIP INTERESTS" means the right to use (whether arising by
virtue of a deeded interest in real property or otherwise, including
pursuant to a Club Membership Interest), a fully-furnished vacation
residence (whether specifically identified or not) for a specified period
each year or otherwise.
2.8 Section 1.01 of the Indenture is amended to include the following
definition:
"VACATION CLUB" means Epic Vacation Club, a Delaware nonprofit
corporation, through which the Company operates its vacation club system.
2.9 Section 4.11(b) of the Indenture, regarding limitations on affiliate
transactions, is amended and restated as follows:
(b) The foregoing paragraph (a) shall not apply to (i) any Restricted
Payment permitted to be made pursuant to Section 4.07, (ii) any issuance of
securities, or other payments, awards or grants in cash, securities or
otherwise pursuant to, or the funding of, employment arrangements, or any
stock options and stock ownership plans for the benefits of employees,
officers and directors, consultants and advisors approved by the Board of
Directors of the Company, (iii) loans or advances to employees in the
ordinary course of business of the Company or any of its Restricted
Subsidiaries in aggregate amount outstanding not to exceed $250,000 to any
employee or $500,000 in the aggregate at any time, (iv) any transaction
between Wholly-Owned Subsidiaries, (v) indemnification agreements with, and
the payment of fees and indemnities to, directors, officers and employees
of the Company and its Restricted Subsidiaries, in each case in the
ordinary course of business, (vi) transactions pursuant to agreements in
existence on the Issue Date which are (x) described in the Offering
Memorandum or (y) otherwise, in the aggregate, immaterial to the Company
and its Restricted Subsidiaries taken as a whole, (vii) any employment,
non-competition or confidentiality agreements entered into by the Company
or any of its Restricted Subsidiaries with its employees in the ordinary
course of business, (viii) the issuance of Capital Stock of the Company
(other than Disqualified Stock), (ix) the payment of reasonable and
customary fees to directors of the
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Company who are not employees of the Company (including, without
limitation, the grant of stock options), and (x) Affiliate Transactions
between either the Company or a Restricted Subsidiary and a Receivables
Subsidiary or the Vacation Club involving the transfer or sale of
Vacation Ownership Interests Receivables or Vacation Ownership
Interests, respectively.
2.10 Section 11.02(b), regarding Recording and Opinions, is amended and
restated as follows:
(b) The Issuers shall furnish to the Trustee within three months after
each anniversary of the date of the Indenture, an Opinion of Counsel, dated
as of such date, stating either that (i) in the opinion of such counsel,
all action has been taken with respect to the recording, registering,
filing, re-recording, re-registering and refiling of all supplemental
indentures, financing statements, continuation statements or other
instruments of further assurance as is necessary to maintain the Liens of
the Collateral Documents and reciting the details of such action or (ii) in
the opinion of such counsel, no such action is necessary to maintain such
Liens, and (iii) that none of the Issuers or Subsidiary Guarantors are
delinquent in the payment of any assessments levied by or owed to the
Vacation Club with respect to Vacation Ownership Interests owned by them.
2.11 Section 11.03 of the Indenture, regarding release of collateral, is
amended and restated as follows:
SECTION 11.03. RELEASE OF COLLATERAL.
(a) Subject to subsections (b), (c), (d), (e), (f), (g) and (h) of
this Section 11.03, Collateral may be released from the Lien and
security interest created by the Collateral Documents at any time or
from time to time at the sole cost and expense of the Issuers (x) upon
payment in full of the Securities in accordance with the terms thereof
and of this Indenture and all other Obligations of the Issuers and the
Subsidiary Guarantors then due and owing under this Indenture, the
Securities and the Collateral Documents, including any defeasance
pursuant to Section 8.01 and (y) the delivery to the Trustee of an
Opinion of Counsel that such release of the Collateral is authorized and
permitted by this Section 11.03 and the applicable Collateral Documents
and that all conditions precedent to such release contained in this
Indenture and the Collateral Documents have been satisfied. Upon
compliance with the above provisions and the provisions of Section 12.04
hereof, the Trustee shall execute, deliver or acknowledge any necessary
or proper instruments or termination, satisfaction or release provided
by or on behalf of the Issuers to evidence the release of any Collateral
permitted to be released pursuant to this Indenture or the Collateral
Documents.
(b)(1) The Trustee shall release the Lien and security interest
created by the Collateral Documents from each Pledged Vacation Ownership
Interest covered thereby at the time of the transfer of title to such
Pledged Vacation Ownership Interest (a "Transfer") by an Issuer or
Subsidiary Guarantor upon receipt
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of an Officer's Certificate stating that the following conditions have
been met with respect to such Transfer:
(A) The Transfer must be pursuant to a written agreement (a "Purchase
Agreement") providing for the purchase and sale of one or more Pledged
Vacation Ownership Interests (any Pledged Vacation Ownership Interest
which is the subject of a Purchase Agreement is referred to in this
Section 11.03 as a "Sold Interest").
(B) The Transfer must be in the ordinary course of business.
(C) The Transfer must be to a Person who is not an Affiliate of the
Issuers or the Subsidiary Guarantors.
(2) The releases described in subsection 11.03(b)(1) above
("Partial Releases") shall be effectuated (a) if the sale of the Pledged
Vacation Ownership Interest is effectuated by a deed or other real
property conveyance (a "Deeded Interest"), pursuant to an instrument
prepared by the Issuers or such Subsidiary Guarantor which shall
specifically recite that the partial release of the Mortgage on the sold
Pledged Vacation Ownership Interest shall not otherwise affect or impair
the Liens created by the Collateral Documents on any other Pledged
Vacation Ownership Interests encumbered thereby, or (b) if sale of the
Pledged Vacation Ownership Interest is effectuated by a transfer of a
Club Membership Interest, automatically pursuant to the terms of the
related Club Security Agreement upon compliance by the Issuer or the
transferring Subsidiary Guarantor with the terms of Section 11.03(b)(1)
hereof, except for the requirement to deliver an Officer's Certificate
to the Trustee.
(3) In order to facilitate Partial Releases of Sold Interests
which are Deeded Interests, the Trustee from time to time shall, upon
written request of the Issuers or a Subsidiary Guarantor, execute,
acknowledge, and deliver powers of attorney in the form provided by the
Issuers (each, a "Power of Attorney"), which form shall conform
substantially to Exhibit I-1 annexed hereto, appointing such title
company or title agency (each, an "Agent") as is designated by the
Issuers or a Subsidiary Guarantor which owns the real property of which
any Sold Interest which is a Deeded Interest is a part as the Trustee's
attorney-in-fact for the purpose of executing, acknowledging and
delivering Partial Releases of such Sold Interests. Each Power of
Attorney shall be delivered by the Trustee to the Agent within five days
of the Issuers' or Subsidiary Guarantor's request therefor, and shall be
delivered with written authorization prepared by the Issuers and
executed and delivered by the Trustee to the Agent to record the Power
of Attorney and to execute Partial Releases pursuant thereto in
connection with the Transfers of Sold Interests which are Deeded
Interests upon receipt by such Agent of the Officer's Certificate
described in subsection 11.03(b)(1) above. Each Power of Attorney by
its terms shall be revocable only by the recording in the county in
which the Power of Attorney is recorded of an instrument executed by the
Trustee specifically revoking the Power of Attorney. The Trustee shall
revoke each Power of Attorney promptly after
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obtaining knowledge of the occurrence and continuance of an Event of
Default; PROVIDED, that if an Event of Default is no longer continuing,
the Trustee may execute new Powers of Attorney in accordance with this
clause (3). The Trustee shall revoke a Power of Attorney promptly after
obtaining knowledge that the Agent thereunder has failed to comply with
its obligations hereunder as assigned pursuant to such Power of
Attorney; PROVIDED, that if a Power of Attorney is so revoked, the
Trustee may execute a new Power of Attorney in accordance with this
clause (3); PROVIDED, FURTHER, that no Agent as to whom a Power of
Attorney has been revoked may thereafter be appointed as an Agent.
(4) Notwithstanding the revocation of a Power of Attorney by the
Trustee as permitted in subsection 11.03(b)(3) above, the Trustee shall
deliver or cause to be delivered Partial Releases with respect to
Transfers of Sold Interests which are Deeded Interests pursuant to
Purchase Agreements entered into prior to the occurrence of an Event of
Default.
(5) In connection with any release of Liens on a Pledged Vacation
Ownership Interest by an Agent with respect to Deeded Interests pursuant
to subsection 11.03(b), the Issuers or the applicable Subsidiary
Guarantor shall deliver or cause to be delivered to such Agent any
certificates, opinions of counsel or other documents or instruments
required to be delivered to the Trustee under applicable law. The
Issuers or the applicable Subsidiary Guarantor shall then cause such
Agent to deliver to the Trustee originals or photostatic copies of each
of the documents relating to such release, including any such
certificates or opinions of counsel, as promptly as is reasonably
practicable.
(6) In connection with any Partial Release, the Trustee and, if
applicable, any Agent shall not be required to obtain any other
certificates, opinions of counsel or other documents and instruments
except such as are specifically required by subsection 11.03(b).
(c) In the event that (i) real property is acquired and/or
developed with Indebtedness Incurred under an A&D Facility, (ii) the
lender or lenders thereunder requires the Indebtedness under such A&D
Facility to be secured by a first priority Lien on such real property
and (iii) such property is not subject to a Mortgage in favor of the
Trustee, the provisions of Section 11.01(b) requiring that a Mortgage on
such property be granted to the Trustee shall, subject to Section
11.03(e), not apply.
(d) In the event that the Trustee is furnished with an Officer's
Certificate certifying that (i) real property is to be acquired and/or
developed with Indebtedness Incurred under an A&D Facility, (ii) the
lender or lenders thereunder require the Indebtedness under such A&D
Facility to be secured by a first priority Lien on such real property
and (iii) such property is already subject to a Mortgage in favor of the
Trustee, the Trustee shall, upon receipt of an Opinion of Counsel to the
effect set forth in clause (a)(y) above, release such Mortgage to the
extent required
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by such lender or lenders in accordance with instructions set forth in such
Officer's Certificate.
(e) Upon the repayment in full of any A&D Facility secured by a
Lien, the Issuers or the applicable Subsidiary Guarantor will promptly cause
such Lien to be removed and shall grant to the Trustee a Mortgage in
accordance with Section 11.01(b).
(f) Notwithstanding any other provisions of this Section 11.03,
absent the occurrence and continuance of an Event of Default, Collateral in
the Cash Collateral Account (as defined in the Security Agreement) may be
released solely in accordance with the terms of the Security Agreement.
(g) In order to facilitate the sale of Pledged Vacation Ownership
Interests, the Trustee shall subordinate the Collateral Documents encumbering
any real property to the documents or instruments creating time share
interest therein (the "Time Share Documents") as permitted by the terms of
the Collateral Documents, whereupon the Collateral Documents shall be subject
and subordinate to the Time Share Documents and the provisions therein
dealing with insurance and the use and application of insurance and
condemnation proceeds. Before taking any actions required pursuant to this
subsection 11.03(g), the Trustee shall be entitled to receive an Officer's
Certificate setting forth the actions that the Trustee is to take and an
Opinion of Counsel to the effect that such actions are permitted by
applicable law and by the terms of the Indenture and the Collateral Documents.
(h) In order to facilitate the sale of Pledged Vacation Ownership
Interests which are or are to become Club Membership Interests, the Trustee,
within five Business Days following request, shall execute and return to the
Issuers a release of the Lien of the Mortgage encumbering any real or
personal property conveyed to the Vacation Club ("Transferred Property")
pursuant to Partial Releases upon prior or concurrent satisfaction of the
following conditions:
(1) The Transferred Property conveyed to the Vacation Club
which consists of real property must consist of parcels or units of
real property which lawfully may be conveyed separately from any
real property not being transferred to the Vacation Club.
(2) The Transferred Property conveyed to the Vacation Club
which consists of real property must be subjected, by means of an
instrument filed in the real property records in the county and
state in which such real property is located, to a declaration or
other instrument which subjects such real property to a time share
regime pursuant to which the Vacation Ownership Interests therein
are evidenced by Club Membership Interests.
(3) The Subsidiary Guarantor transferring the Transferred
Property to the Vacation Club must retain, or simultaneously
receive
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from the Vacation Club, ownership of all Club Membership
Interests allocable to such Transferred Property.
(4) The Club Membership Interests allocable to the Transferred
Property must be subject to, or subjected to, a Club Security
Agreement which creates a security interest therein, subject only to
(A) Permitted Liens, (B) to Liens subsequently arising in favor or
the Vacation Club for non-payment of future assessments and fees
with respect to such Club Membership Interests, (C) Liens which, in
the aggregate, would not have a materially adverse effect upon the
ability of the Subsidiary Guarantor to sell the Club Membership
Interests owned by it to purchasers in the ordinary course of
business as provided in Section 11.03(b)(1), and (D) Liens which
are being contested by the Subsidiary Guarantor or the Vacation
Club in good faith.
(5) The Trustee shall have been provided with copies of
UCC/Tax Lien/Litigation search results, current as of a date not
more than 30 days earlier than the date of conveyance of the
Transferred Property to the Vacation Club, conducted in the names
of the transferring Subsidiary Guarantor and the Vacation Club
(such searches shall be conducted in the county and state in which
the Transferred Property is located and in the county and state in
which the chief executive offices of the Vacation Club and the
transferring Subsidiary Guarantor are located).
(6) The Trustee shall be provided with an Officer's
Certificate stating that the requirements of subsections
11.03(h)(1) through (5) have been satisfied and that none of the
items disclosed by the searches referenced in Sections 11.03(h)(5)
is other than one permitted by subsection 11.03(h)(4), which
Officer's Certificate shall have appended thereto an Opinion of
Counsel, furnished by counsel licensed to practice in the state in
which the Transferred Property is located, addressed to the
Issuers, the transferring Subsidiary Guarantor, and the Trustee to
the effect that the requirements of subsections 11.03(h)(1) through
(5) have been satisfied.
The Partial Releases of Transferred Property described in this Section
11.03(h) shall be effectuated pursuant to an instrument prepared by the
Issuers or the transferring Subsidiary Guarantor which shall specifically
recite that the partial release of the Mortgage from the Transferred Property
shall not otherwise affect or impair the Lien of the Mortgage upon any other
real property remaining encumbered thereby.
(i) The Trustee has no liability for any act or failure to act of
any Agent except as may result from the Trustee's willful or grossly
negligent failure to fulfill its obligations under Section 11.03(b)(3).
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2.12 The exhibits to the Indenture are amended to include Exhibit J, a
form of Club Security Agreement in the form annexed to this Second
Supplemental Indenture. The form of Club Security Agreement is subject to
modification according to the local laws and regulations of the jurisdiction
in which the applicable resort is located.
SECTION 3. MISCELLANEOUS.
3.1. EFFECT AND OPERATION OF SECOND SUPPLEMENTAL INDENTURE. This Second
Supplemental Indenture shall be effective upon the execution and delivery
hereof by the Issuers, the Subsidiary Guarantors and the Trustee. The
Indenture shall be supplemented and amended in accordance therewith, and this
Second Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Security heretofore or hereafter authenticated and
delivered under the Indenture shall be bound thereby. Except as supplemented
hereby, all provisions of the Indenture shall remain in full force and
effect.
3.2. INDENTURE AND SECOND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This Second Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Second
Supplemental Indenture shall from the date hereof be read and construed
together.
3.3. CONFIRMATION AND PRESERVATION OF THE INDENTURE. The Indenture, as
supplemented by this Second Supplemental Indenture, is in all respects
confirmed and preserved.
3.4. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act of 1939, as amended (the "ACT"), that is required
under such Act to be part of and govern any provision of this Second
Supplemental Indenture, the provisions of such Act shall control. If any
provision of this Second Supplemental Indenture modifies or excludes any
provision of the Act that may be so modified or excluded, the provisions of
the Act shall be deemed to apply to the Indenture as so modified or to be
excluded by this Second Supplemental Indenture, as the case may be.
3.5. SEPARABILITY. In case any provision of this Second Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
3.6. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
3.7. BENEFITS OF SECOND SUPPLEMENTAL INDENTURE. Nothing in the
Indenture, this Second Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto
and their successors hereunder and thereunder, and the Securityholders, any
benefit of any legal or equitable right, remedy or claim under the Indenture
as supplemented and amended hereby or the Securities.
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3.8. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Second Supplemental Indenture by the Issuers and the Subsidiary Guarantors
shall bind their successors and assigns, whether so expressed or not.
3.9. NEW YORK LAW TO GOVERN. This Second Supplemental Indenture shall
be governed by and construed in accordance with the laws of the State of New
York but without giving effect to applicable principles of conflicts of law
to the extent that the application of the laws of another jurisdiction would
be required thereby.
3.10. COUNTERPARTS. This Second Supplemental Indenture may be
executed in counterparts, each of which shall be an original, but all such
counterparts shall together constitute one and the same instrument.
3.11 THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Second
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Issuers and the Subsidiary
Guarantors.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the date and the year first above written.
EPIC RESORTS, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC CAPITAL CORP.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC RESORTS - VACATION SHOWPLACE, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC RESORTS MANAGEMENT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC MARKETING, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC TRAVEL, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
12
EPIC RESORTS - PALM SPRINGS MARQUIS VILLAS, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC RESORTS - SCOTTSDALE LINKS RESORT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC RESORTS - HILTON HEAD RESORT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
EPIC RESORTS - WESTPARK RESORT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: President
DAYTONA BEACH REGENCY, LTD., by Resort
Management, LLC, its general partner
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
LONDON BRIDGE RESORT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: President
13
EPIC WARRANT CO.
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
RESORT MANAGEMENT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
RESORT INVESTMENT, LLC
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
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Title: President
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/ Illegible
----------------------------------------
Title: Vice President
14
