Exhibit 10.43
AMENDMENT TO
LOAN DOCUMENTS
(▇▇▇▇'▇ RANCH)
This Amendment to Loan Documents ("Amendment") is made and entered into as
of October 31, 2001 by and between ILX Resorts Incorporated, an Arizona
corporation ("ILX"); Los Abrigados Partners Limited Partnership, an Arizona
limited partnership ("Abrigados"), Premiere Development Incorporated, an Arizona
corporation ("Premiere"), ILE Sedona Incorporated, an Arizona corporation
("ILE"), VCA Tucson Incorporated, an Arizona corporation ("VCA Tucson"), VCA
South Bend Incorporated, an Arizona corporation ("VCA South Bend") and VCA
Nevada Incorporated, an Arizona Corporation ("VCA Nevada") (collectively, the
"ILX Entities") whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇; and Litchfield Financial Corporation, a Massachusetts corporation
("Lender"), whose address is ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇.
RECITALS:
A. Under date of March 19, 1999 ILX and Lender entered into a certain
Secured Construction Loan Agreement pertaining to, INTER ALIA, Lender's loan to
ILX in the amount of $2,830,000.00 for the purpose of financing the construction
of improvements at the ▇▇▇▇'▇ Ranch project located in or near Payson, Arizona.
This Secured Construction Loan Agreement was subsequently modified by a certain
May 7, 1999 letter agreement by and between Borrower and Lender, and a June 11,
1999 letter from Lender to Borrower (collectively, the "Letter Agreements"),
which pertain, INTER ALIA, to the amount and application of certain release
prices to be paid by Borrower to Lender. The loan contemplated by the foregoing
documents is hereinafter referred to as the "▇▇▇▇'▇ Ranch Loan" and the
documents executed in connection therewith are hereinafter referred to as the
"▇▇▇▇'▇ Ranch Documents".
B. Under date of November 24, 1998 certain of the ILX Entities as Borrower
and Lender entered into a certain Secured Loan Agreement (ILX Resorts
Incorporated: San ▇▇▇▇▇▇ Inventory Development, Los Abrigados Sales Center
Construction, Term Loan Restatement Project). This Secured Loan Agreement
pertained, INTER ALIA, to a loan from Lender to the ILX Entities in the amount
of $2,300,000.00 for the purpose of acquiring and developing timesharing
inventory located at the San ▇▇▇▇▇▇ Resort, Guaymas, Senora, Mexico (the "San
▇▇▇▇▇▇ Inventory Development Loan") and $800,000.00 for the purpose of
constructing a new sales center to be located at Los Abrigados Resort, Sedona,
Arizona (the "Sales Center Loan"). The San ▇▇▇▇▇▇ Inventory Development Loan and
Sales Center Loan were evidenced by a $3,100,000.00 Secured Construction and
Inventory Development Promissory Note dated November 24, 1998. Pursuant to this
Secured Loan Agreement, a certain July 29, 1998 Secured Term Promissory Note
from the ILX Entities to Lender in original principal amount of $2,485,000.00
was amended and restated and, in connection therewith, the ILX Entities executed
and delivered to Lender a certain Amended and Restated Secured Promissory Note
in original principal amount of $2,485,000.00, pertaining to the Los Abrigados
Resort (the "Restated Loan". Hereinafter, the loans described in the
aforementioned November 24, 1998 Secured Loan Agreement are referred to,
collectively, as the "Combination Loan," and the loan documents executed in
connection therewith are referred to as the "Combination Loan Documents."
C. Under date of June 12, 1998 certain of the ILX Entities as Borrower and
Lender entered into a certain Secured Line of Credit Lending Agreement (ILX
Resorts - Global Facility) pertaining, INTER ALIA, to a $40,000,000.00 loan from
Lender to Borrower secured, INTER ALIA, by Pledged Accounts. Hereinafter, the
loan contemplated by the aforesaid Secured Line of Credit Lending Agreement and
the loan described therein is referred to as the "Global Loan," and the
documents executed in connection therewith are referred to as the "Global Loan
Documents".
D. Under date of September 17, 1998 certain of the ILX Entities as Borrower
and Lender entered into a certain Amended and Restated Secured Line of Credit
Lending Agreement (ILX Incorporated) pertaining, INTER ALIA, to a $3,500,000.00
loan from Lender to Borrower secured, INTER ALIA, by Pledged Accounts.
Hereinafter, the loan contemplated by the aforesaid Amended and Restated Secured
Line of Credit Lending Agreement is referred to as the "Non Conforming Loan" and
the documents executed in connection therewith are referred to as the "Non
Conforming Loan Documents."
E. ILX has requested that Lender increase the maximum principal amount of
the ▇▇▇▇'▇ Ranch Loan from $2,830,000.00 to$8,030,000 for the purpose, INTER
ALIA, of the providing of funding for the improvements of certain real property
owned or leased by the ILX Entities including the projects located in Las Vegas,
Nevada known as The Greens of Las Vegas Golf Center, the ▇▇▇▇ Rock Inn located
in Oak Creek, Arizona and The Carriage House, and the Los Abrigados Resort
located in Sedona, Arizona, as more fully set forth below.
F. As a condition to granting ILX's request to increase the amount of the
▇▇▇▇'▇ Ranch Loan, Lender requires certain modifications to the various Loan
Documents referenced above, as hereinafter set forth.
The parties desire to enter into this Amendment in order to memorialize
their agreements with respect to the foregoing as hereinafter set forth.
AGREEMENTS:
In consideration of the foregoing Recitals, which are incorporated herein
by reference, the covenants and agreements hereinafter set forth, the legal
adequacy and sufficiency of which are hereby acknowledged, the parties hereby
agree:
1. AMENDMENT CONTROLS. In the case of any conflict between the terms of
this Amendment and the provisions of the above described ▇▇▇▇'▇ Ranch Loan
Documents, the Combination Loan Documents, the Non Conforming Loan Documents
and/or the Global Loan Documents (collectively, the "Loan Documents"), the
provisions of this Amendment shall control. Except as specifically modified
hereby, the parties hereby ratify, reaffirm, and restate the terms of each of
said Loan Documents.
2. DEFINED TERMS. Any capitalized term not defined herein shall have the
meaning set forth in the applicable Loan Documents referenced above.
3. STATUS OF LOANS. As of September 30, 2001 the outstanding balance on the
above-described Loans are as follows:
LOAN PRINCIPAL BALANCE AS OF 9/30/01
---- -------------------------------
▇▇▇▇'▇ Ranch Loan $ 1,638,432.15
San ▇▇▇▇▇▇ Inventory Development Loan $ 0.00
The Sales Center Loan $ 0.00
The Restated Loan $ 931,375.55
The Global Loan $16,774,927.96
Non Conforming Loan $ 390,207.59
The ILX Entities, and each of them, hereby acknowledge that Lender is current in
the performance of all obligations under the above-referenced Loans and Loan
Documents, and as of the date set forth in the introduction to this Amendment,
the ILX Entities, collectively, and each of them individually, warrant and
represent that they have no defenses, set-offs, or counterclaims to their
liability to Lender under the subject Loans or the Loan Documents pertaining to
same. Without waiving the generality of the foregoing and in consideration of
Lender's execution of this Amendment, and in further consideration of Lender's
agreement to increase the maximum principal amount of the ▇▇▇▇'▇ Ranch Loan to
$8,030,000.00 as hereinafter provided, the ILX Entities individually and
collectively hereby waive and release any and all counterclaims, set-offs, or
defenses against liability under the subject Loans or Loan Documents arising on
or before the date of this Amendment.
4. AMENDMENTS ▇▇▇▇'▇ RANCH LOAN AND ▇▇▇▇'▇ RANCH LOAN DOCUMENTS. The ▇▇▇▇'▇
Ranch Loan and ▇▇▇▇'▇ Ranch Loan Documents are hereby amended in the following
respects:
a. INCREASE IN MAXIMUM OF ▇▇▇▇'▇ RANCH LOAN.. The maximum principal
amount of the ▇▇▇▇'▇ Ranch Loan is hereby increased from $2,830,000.00 to
$8,030,000.00
b. EXTENSION OF ▇▇▇▇'▇ RANCH LOAN BORROWING PERIOD. The period during
which Lender will make non-revolving Advances to Borrower pursuant to the ▇▇▇▇'▇
Ranch Loan Documents as modified hereby, is hereby extended to March 31, 2003
(the "Extended Borrowing Period"). During the Extended Borrowing Period Borrower
shall continue to make regular minimum quarterly principal reduction payments in
the amount of $176,813.00 per quarter.
c. EXTENSION OF LOAN TERM AND INCREASE IN MINIMUM QUARTERLY PRINCIPAL
REDUCTION PAYMENTS.. The Maturity Date of the ▇▇▇▇'▇ Ranch Loan is hereby
extended from April 15, 2003 to April 1, 2006, at which time all unpaid
principal and interest shall be fully due and payable.. The maturity date of the
▇▇▇▇'▇ Ranch Loan is subject to acceleration if an Event of Default shall occur.
From and after the end of the Extended Borrowing Period referenced above in
paragraph 4.b., the minimum quarterly principal reduction payment shall be
increased from $176,813.00 (which shall be paid during the Extended Borrowing
Period) to an amount equal to one twelfth of the principal balance outstanding
on the ▇▇▇▇'▇ Ranch Loan on the last day of the Extended Borrowing Period. By
way of example, in the event the principal balance is $6,000,000.00 on the last
day of the Extended Borrowing Period, the minimum quarterly principal reduction
payment would be $500,000.00 ($6,000,000.00 divided by 12) per quarter until the
▇▇▇▇'▇ Ranch Loan is paid in full.
d. AMOUNT AND APPLICATION OF RELEASE FEES.. The amount of the release
fee payable to Lender pursuant to the ▇▇▇▇'▇ Ranch Loan Documents and/or the
Combination Loan Documents on or after the effective date of this Amendment is
hereby amended as follows:
NEW RELEASE FEE PURSUANT
PRIOR RELEASE FEE TO AMENDMENT
--------------------- ------------------------
RESORT ANNUAL BIANNUAL ANNUAL BIANNUAL
------ ------ -------- ------ --------
Stand-alone (non-club) ▇▇▇▇'▇ Ranch $1,500.00 $ 900.00 $1,500.00 $ 900.00
Stand-alone(non-club)Los Abrigados $1,200.00 $ 720.00 $1,200.00 $ 720.00
Premiere Vacation Club $1,000.00 $ 580.00 $1,920.00 $1,152.00
*
e. APPLICATION OF RELEASE FEES.. The revised release fees as set forth
above shall be applied to the ▇▇▇▇'▇ Ranch Loan until the ▇▇▇▇'▇ Ranch Loan is
paid in full. The foregoing application of release fees shall apply unless and
until an Event of Default occurs. If an Event of Default occurs, Lender may
apply the release fees to obligations owed Lender by the ILX Entities, or any of
them, as Lender determines, in Lender's sole discretion. Lender may adjust the
above-described release fees if and as necessary in order to assure that the
▇▇▇▇'▇ Ranch Loan as modified hereby is repaid in full on or before 80% sell-out
of existing Vacation Ownership Interests owned by the ILX Entities and pledged
to Lender, in which Lender has a first priority duly perfected security
interest. Subject to Lender's consent (not to be unreasonably withheld) upon
payment of the foregoing release fee, the applicable borrower shall have the
right to designate which intervals are released.
f. USE OF INCREASED ▇▇▇▇'▇ RANCH LOAN PROCEEDS. From and after the
date hereof, Advances of the ▇▇▇▇'▇ Ranch Loan may be used for the following
purposes only:
--------
* Not applicable - All San ▇▇▇▇▇▇ inventory has been annexed to Premiere
Vacation Club ("PVC")
(i) PROJECT IMPROVEMENTS.. Advances may be used for effecting
improvements (the "Improvement Advances") as follows to the following projects.
A. THE GREENS OF LAS VEGAS and Joey's Restaurant. Up to a
maximum of $1,500,000.00 of the ▇▇▇▇'▇ Ranch Loan proceeds shall be used to fund
improvements (furniture, fixtures, equipment and minor remodeling, but no
material new construction) to The Greens of Las Vegas Golf Center leasehold
estate including renovation and equipping the ILX Sales Center, office space
therein and Joeyss.s Restaurant to be located in the Carriage House, located in
Las Vegas, Nevada.
B. LOS ABRIGADOS RESORT. Up to a maximum of $1,000,000.00 of
the ▇▇▇▇'▇ Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, equipment and more extensive remodeling, to include new construction)
to the old sales center of the Los Abrigados Resort, in order to convert same
into eight additional residential units. These additional residential units
shall be subject to the lien of the deed of trust encumbering the Los Abrigados
Resort for the benefit of Lender.
▇. ▇▇▇▇'▇ RANCH.. Up to a maximum of $500,000.00 of the of
the ▇▇▇▇'▇ Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, and equipment and more extensive remodeling to include new
construction) to the certain residential units within the ▇▇▇▇'▇ Ranch project,
including the Platinum Unit.
▇. ▇▇▇▇ ROCK INN. Up to a maximum of $1,200,000.00 of the
▇▇▇▇'▇ Ranch Loan proceeds shall be used to fund improvements (furniture,
fixtures, equipment and minor remodeling, but no material new construction) to
the ▇▇▇▇ Rock Inn.
(ii) SEDONA WORLDWIDE INC. STOCK PURCHASE.. Up to a maximum of
$1,000,000.00 of the ▇▇▇▇'▇ Ranch Loan proceeds shall be Advanced to fund ILX's
purchase of 8,000,000 shares of Sedona Worldwide Inc. (the "Sedona Worldwide
Advance").
(iii) SUMS DUE LENDER.. The balance of the increased ▇▇▇▇'▇ Ranch
Loan funding may be used for the purpose, and solely for the purpose, of ILX's
payment of sums due Lender including, without limitation, the Modification Fee
described below in the amount of $10,000.00, the 1% Advance Fee due Lender with
respect to any Advance under the ▇▇▇▇'▇ Ranch Loan, and the payment of Lender's
Expenses incurred in connection with this Amendment.
g. NOTICE PROVISIONS.. Any notices to Lender pursuant to the ▇▇▇▇'▇
Ranch Loan Documents, shall be made as follows:
If to Lender: Litchfield Financial Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Loan Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: Textron Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Division President
Facsimile:(▇▇▇) ▇▇▇-▇▇▇▇
and: Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
h. CROSS-COLLATERALIZATION AND CROSS DEFAULT.. The collateral pledged
for the ▇▇▇▇'▇ Ranch Loan also collateralizes the Combination Loan, the Global
Loan, the Non Conforming Loan and any other loan or obligation, now or in the
future, from the ILX Entities, their affiliates, or any of them, to Lender.
Likewise, the collateral pledged to secure the Combination Loan, the Global
Loan, the Non Conforming Loan or any other obligation now or in the future owed
by the ILX Entities, or any of them, or any of their affiliates to Lender also
collateralizes the ▇▇▇▇'▇ Ranch Loan. Subject to the provisions set forth above
in paragraph 4.e. concerning the application of release fees, Lender may apply
the collateral or proceeds thereof it receives to any of the obligations
collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the ▇▇▇▇'▇ Ranch Loan shall constitute an Event of
Default under the Combination Loan, the Global Loan, the Non Conforming Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the
Combination Loan, the Global Loan, the Non Conforming Loan, or any other loan or
obligation now or in the future from the ILX Entities, their affiliates, or any
other of them, to Lender, shall be an Event of Default under the ▇▇▇▇'▇ Ranch
Loan.
5. CONDITIONS TO FUNDING. Anything to the contrary herein notwithstanding,
Lender shall have no obligation to make any subsequent Advance under the ▇▇▇▇'▇
Ranch Loan unless and until each of the following requirements are satisfied or
waived by Lender, in writing, in Lender's sole discretion:
a. EXECUTION OF DOCUMENTS.. The ILX Entities shall have executed and
delivered to Lender (or cause to be recorded or filed for record with the
appropriate governmental office) the following documents in connection herewith:
(i) this Amendment, (ii) the Allonge to Secured Construction Promissory Note in
the form appended hereto as EXHIBIT A, (iii) a Supplemental Security Agreement
in the form appended hereto as EXHIBIT B, (iv) UCC-1 Financing Statements
evidencing and perfecting Lender's first priority security interest in the
additional collateral described in the Supplemental Security Agreement; (v) an
Amended and Restated Deed of Trust encumbering all now and hereafter acquired
timeshare intervals and units owned by and/or conveyed to PVC (other than
intervals located in the Carriage House, in Las Vegas Nevada, which shall be
excluded from said Amended and Restated Deed of Trust) in the form appended
hereto as EXHIBIT C, (vi) a Collateral Assignment of Lease with respect to the
Master Lease between the County of ▇▇▇▇▇, Nevada and ILX Resorts Incorporated
pertaining to the Greens of Las Vegas in the form appended hereto as EXHIBIT D
(which Collateral Assignment of Lease will be released by Lender after the ILX
Entities have repaid $2,000,000.00 of the additional $5,200,000.0 to be loaned
by Lender pursuant to this Amendment), and (vii) such other documents or
agreements as may be reasonably required by Lender, including, without
limitation, an opinion of counsel in form and substance satisfactory to Lender.
b. NO EVENT OF DEFAULT. No Event of Default shall have occurred, nor
shall any condition exist which, with the passage of time or the giving of
notice, shall constitute an Event of Default.
c. PAYMENT OF MODIFICATION FEE. ILX shall have paid Lender a loan
modification fee in the amount of $10,000.00 in consideration of Lender's
execution of this Amendment.
d. LENDER'S EXPENSES. ILX shall have paid Lender's Expenses incurred
in the investigation, negotiation, preparation and administration of this
Amendment and related Loan Documents, including, without limitation, Lender's
reasonable attorneysss. fees and costs, and any fees and expenses of Lender
incurred in the administration of the subject Loans, including, without
limitation, any expenses incurred by Lender or any construction inspector
retained on behalf of Lender (including, without limitation, travel costs) in
inspecting the subject projects or the improvements thereto.
e. ILX's REPRESENTATIONS AND WARRANTIES. Each representation and
warranty of any of the ILX Entities in any Loan Document shall be true and
correct. The ILX Entities hereby each ratify, restate, reaffirm, republish and
confirm the representations, warranties and covenants set forth in the ▇▇▇▇'▇
Ranch Loan Documents, the Combination Loan Documents, and the Global Loan
Documents. In addition, the ILX Entities hereby warrant and represent to Lender
that Lender's mortgage and security interest in all now owned and hereafter
acquired timeshare intervals and units owned by and/or conveyed to Premiere
Vacation Club (other than Carriage House intervals, in which Lender shall have
no security interest) is and will at all times be a properly perfected first and
prior security interest therein, and that no other creditor holds any security
interest in said inventory save and except as follows: Bank of Enid, Oklahoma
holds a first priority deed of trust with respect to 1,827 Timesharing Intervals
located at VCA Tucson.
f. CONDITIONS TO SPECIFIC ADVANCES.
(i) IMPROVEMENT ADVANCES.
(A) DISBURSEMENTS. So long as no Event of Default shall
have occurred, funds shall be disbursed by Lender for the purposes of effecting
the improvements to the projects set forth above in paragraph 4.f.(i) not to
exceed the amounts set forth therein on the following terms and conditions. All
requests for funding shall be in writing and shall be made through ILX's
completion and submission of a construction loan request in the form appended
hereto as EXHIBIT E, or such other form as Lender may require. ILX shall have
provided Lender a written budget satisfactory to Lender in its discretion for
the improvements to be effected at the subject project, supported by bids, cost
estimates, contracts or other documentation reasonably satisfactory to Lender,
which budget shall be updated in writing as necessary by ILX. Each such
disbursement shall be made on written request of ILX only for the purpose of
funding the cost of improvements in place or materials delivered to the job site
and properly installed or securely stored therein as evidenced by invoices or
other documentation reasonably satisfactory to Lender, in accordance with the
plans and specifications therefore supplied to and approved by Lender in its
reasonable discretion. Lender shall have the right to make inspections of the
subject projects and improvements and all the improvements for which
disbursement of Loan proceeds shall be satisfactory to Lender and its
construction inspector, if any. All improvements to the subject project to the
date of disbursement shall have been paid for in full (or subject only to
applicable retainage) as evidenced by lien waivers or other documentation
reasonably satisfactory to Lender. With respect to furniture, fixtures,
equipment and personalty paid for in whole or in part by Advances, Lender shall
have, and the ILX Entities hereby grant to Lender, a duly perfected first
priority security interest in same. The cost of completing the subject
improvements at no time shall exceed the undisbursed balance of the Loan
proceeds pertaining to the subject project (and if the cost of completing the
subject improvements at any time exceeds the undisbursed balance of the Loan
proceeds pertaining to the subject project, ILX shall immediately pay to Lender
for deposit into a non-interest bearing Loan account an amount equal to any such
excess, which amounts shall be disbursed by Lender pursuant to the provisions of
this paragraph). No funds shall be advance by Lender for the purposes of
effecting the improvements to the ▇▇▇▇ Rock Inn until the ILX Entities have
executed and delivered to Lender an additional security agreement and UCC-1
financing statements perfecting Lender's security interests in the furniture,
fixtures, and equipment acquired with Lender's funding.
(B) REPRESENTATIONS AND WARRANTIES.. Each request for a
disbursement for improvement purposes constitutes the representation and
warranty of the ILX Entities that each of the foregoing conditions have been
satisfied and that: the subject disbursement will be used only for the purposes
set forth in the request for disbursement; that all improvements to the subject
project have been paid in full; that no Event of Default or any condition which,
with the giving of notice or the passage of time, would constitute an Event of
Default, exists; that the balance of the Loan proceeds pertaining to the subject
project are sufficient to complete the improvements to the subject project; and
that all other representations, warranties, covenants and agreements of the ILX
Entities in this Amendment and the other Loan Documents are true and correct and
..
(ii) SEDONA WORLDWIDE ADVANCE.. Lender shall fund the Sedona
Worldwide Advance only through an escrow pursuant to which the stock certificate
evidencing ILX's ownership of the 8,000,000 shares of Sedona Worldwide Inc.
purchased therewith is delivered to Lender in order to perfect Lender's first
priority security interest in such shares and their proceeds, which ILX hereby
grants to Lender. On or before the Sedona Worldwide Advance, ILX shall execute
and deliver to Lender a Stock Pledge And Security Agreement in the form appended
hereto as EXHIBIT F.
6. AMENDMENTS TO GLOBAL LOAN AND GLOBAL LOAN DOCUMENTS.. The Global Loan
and Global Loan Documents are hereby amended in the following respects:
a. DECREASE IN MAXIMUM LINE AMOUNT.. The Maximum Line Amount of the
Global Loan as set forth in the Global Loan Documents is hereby decreased from
$40,000,000.00 to $30,000,000.00.
b. NOTICE PROVISIONS. Any notices to Lender pursuant to the Global
Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Loan Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: Textron Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Division President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and: Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c. CROSS-COLLATERALIZATION AND CROSS DEFAULT.. The collateral pledged
for the Global Loan also collateralizes the Combination Loan, the ▇▇▇▇'▇ Ranch
Loan, the Non Conforming Loan and any other loan or obligation now or in the
future from the ILX Entities, their affiliates, or any of them, to Lender..
Likewise, the collateral pledged to secure the Combination Loan, the ▇▇▇▇'▇
Ranch Loan, the Non Conforming Loan or any other obligation now or in the future
owed by the ILX Entities, or any of them, or any of their affiliates to Lender
also collateralizes the Global Loan. Subject to the provisions set forth above
in paragraph 4.e. concerning the application of release fees, Lender may apply
the collateral or proceeds thereof it receives to any of the obligations
collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the Global Loan shall constitute an Event of Default
under the Combination Loan, the ▇▇▇▇'▇ Ranch Loan, the Non Conforming Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the
Combination Loan, the ▇▇▇▇'▇ Ranch Loan, the Non Conforming Loan, or any other
loan or obligation now or in the future from the ILX Entities, their affiliates,
or any other of them, to Lender, shall be an Event of Default under the Global
Loan.
7. AMENDMENT TO COMBINATION LOAN.. The Combination Loan and the Combination
Loan Documents are hereby amended as follows:
a. MODIFICATION AND APPLICATION OF RELEASE FEES. The release fees
payable to Lender with respect to the Los Abrigados (Stand Alone) and San ▇▇▇▇▇▇
project (Premiere Vacation Club), and the Premiere Vacation Club, shall be
amended and applied as set forth above in paragraphs 4.d. and 4.e.
b. NOTICE PROVISIONS. Any notices to Lender pursuant to the
Combination Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Loan Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: Textron Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Division President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and: Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
c. CROSS-COLLATERALIZATION AND CROSS DEFAULT.. The collateral pledged
for the Combination Loan, or any of them, also collateralizes the Global Loan,
the ▇▇▇▇'▇ Ranch Loan, the Non Conforming Loan, as modified now or in the
future, and any other loan or obligation now or in the future from the ILX
Entities, their affiliates, or any of them, to Lender. Likewise, the collateral
pledged to secure the Global Loan, the ▇▇▇▇'▇ Ranch Loan, the Non Conforming
Loan or any other obligation now or in the future owed by the ILX Entities, or
any of them, or any of their affiliates to Lender also collateralizes the
Combination Loan. Subject to the provisions set forth above in paragraph 4.e.
concerning the application of release fees, Lender may apply the collateral or
proceeds thereof it receives to any of the obligations collateralized thereby,
in Lender's sole discretion. Likewise, the occurrence of an Event of Default
under the Combination Loan shall constitute an Event of Default under the Global
Loans, the ▇▇▇▇'▇ Ranch Loan, the Non Conforming Loan and any other loan or
obligation now or in the future, from the ILX Entities, their affiliates, or any
of them to Lender, and an Event of Default under the Global Loan, the ▇▇▇▇'▇
Ranch Loan, the Non Conforming Loan, or any other loan or obligation now or in
the future from the ILX Entities, their affiliates, or any other of them, to
Lender, shall be an Event of Default under the Combination Loan.
8. AMENDMENTS TO NON CONFORMING LOAN AND NON CONFORMING LOAN DOCUMENTS. The
Non Conforming Loan and Non Conforming Loan Documents are hereby amended in the
following respects:
a. NOTICE PROVISIONS.. Any notices to Lender pursuant to the Non
Conforming Loan Documents shall be made as follows:
If to Lender: Litchfield Financial Corporation
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇-▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Loan Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: Textron Financial Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Division President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and: Textron Financial Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇. ▇▇▇▇▇ & Associates, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
b. CROSS-COLLATERALIZATION AND CROSS DEFAULT.. The collateral pledged
for the Non Conforming Loan also collateralizes the Global Loan, the ▇▇▇▇'▇
Ranch Loan, the Combination Loan and any other loan or obligation now or in the
future from the ILX Entities, their affiliates, or any of them, to Lender.
Likewise, the collateral pledged to secure the Global Loan, the ▇▇▇▇'▇ Ranch
Loan, the Combination Loan, or any other obligation now or in the future owed by
the ILX Entities, or any of them, or any of their affiliates to Lender also
collateralizes the Non Conforming Loan. Subject to the provisions set forth
above in paragraph 4.e. concerning the application of release fees, Lender may
apply the collateral or proceeds thereof it receives to any of the obligations
collateralized thereby, in Lender's sole discretion. Likewise, the occurrence of
an Event of Default under the Non Conforming Loan shall constitute an Event of
Default under the Global Loans, the ▇▇▇▇'▇ Ranch Loan, the Combination Loan and
any other loan or obligation now or in the future, from the ILX Entities, their
affiliates, or any of them to Lender, and an Event of Default under the Global
Loan, the ▇▇▇▇'▇ Ranch Loan, the Combination Loan, or any other loan or
obligation now or in the future from the ILX Entities, their affiliates, or any
other of them, to Lender, shall be an Event of Default under the Non Conforming
Loan.
9. GOVERNING LAW AND VENUE. This Amendment shall be construed and enforced
according to the laws of the State of Colorado. The parties stipulate and agree
that the exclusive jurisdiction and venue for any dispute arising under this
Amendment, the ▇▇▇▇'▇ Ranch Loan Documents, the Combination Loan Documents, the
Global Loan Documents, or any other Loan Document shall be in Jefferson County,
Colorado. Provided, however, that nothing herein shall preclude Lender's
institution of proceedings in the State of Arizona or any other state in which
any ILX Entity or affiliate maintains offices, facilities or assets.
10. EXCLUSIVE RIGHT TO FINANCE. ILX hereby grants Lender and its successors
and assigns the following exclusive rights to provide financing to The Greens of
Las Vegas Golf Center as follows:
a. RECEIVABLES FINANCING.. The exclusive right to purchase,
hypothecate or otherwise finance all timeshare sales, club membership sales,
receivables generated, originated or otherwise owned by the ILX Entities, or any
of them, or their successors, assigns, or any of their affiliated entities and
originated at The Greens of Las Vegas Golf Center.
Provided, however, that the foregoing provisions shall not require Lender
to provide any such financing, and any such financing shall be evidenced only by
subsequent written agreement between the parties, and shall be subject to the
approval of Lender and its Credit Committee, in their sole discretion. And,
provided further, that if Lender acknowledges in writing that Lender is unable
or unwilling to provide the above-described financing, ILX may obtain said
financing from other sources.
11. MISCELLANEOUS.
a. WAIVER.. No waiver by Lender of any default or breach by the ILX
Entities or any of them hereunder or under the other Loan Documents referenced
herein shall be implied from any omission by Lender to take, or any delay in
taking, action on account of such default other than the default expressly made
the subject of the waiver and any such express waiver shall be operative only
for the time and to the extent therein stated. Any waiver of any covenant, term
or condition contained herein shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or
approval by Lender to or of any act by the ILX Entities or any of them requiring
further consent or approval shall not be deemed to waive or render unnecessary
the consent or approval to or of any subsequent similar act. Notwithstanding
anything set forth herein to the contrary, if no notice of a default or waiver
is required hereunder and none has been given, Lender shall not be deemed to
have waived any rights which it may have hereunder until seven (7) days
following receipt by it of written notice from the ILX Entities or any of them
alerting Lender to the fact that the time for exercising any right or remedy
hereunder has elapsed without exercise thereof and such time for exercise shall
automatically be extended to seven (7) days following notice, said right shall
conclusively be deemed to have been waived by Lender. The intent of this
paragraph is to avoid unintentional waivers by Lender of any of its rights
hereunder.
b. NO DUTY OF LENDER. Nothing in this Amendment shall impose or imply
any duty or obligation whatsoever upon Lender, and Lender shall be under no duty
to take any action to preserve rights of the ILX Entities or any of them with
respect to any of the security held by Lender for the Obligations. The ILX
Entities or any of them waive any and all impairment of recourse and/or
impairment of collateral defenses which it may possess against the Lender.
c. SURVIVAL. The warranties, representations and agreements set forth
herein survive the closing hereof.
d. MERGER. This Amendment represents the culmination of all prior
negotiations, representations, and agreements between the parties with respect
to the purchase and sale contemplated hereby. All such prior negotiations,
representations, and agreements are merged herein.
e. PREPARATION OF AMENDMENT.. The parties hereto acknowledge that this
Amendment has been negotiated and prepared in an arms-length transaction and
that both Lender and the ILX Entities and each of them have negotiated all the
terms contained herein. Accordingly, the parties agree that neither party shall
be deemed to have drafted the Amendment and the Amendment shall not be
interpreted against any party as the draftsman.
f. OTHER ACTS AND DOCUMENTS. The parties agree to undertake such other
acts and execute such other documents as may be reasonably necessary to effect
the purpose and intent of this Amendment.
g. ADVICE OF COUNSEL. Each party acknowledges to the other that such
party has been advised by legal counsel in connection with the negotiation and
execution of this Amendment and that each party understands the terms and
conditions contained herein and that each has entered into this Amendment
voluntarily.
h. JURY WAIVER. THE ILX ENTITIES AND EACH OF THEM HEREBY KNOWINGLY AND
VOLUNTARILY WAIVE THEIR RIGHT TO A JURY TRIAL IN THE EVENT OF ANY DISPUTE OR
LITIGATION ARISING HEREUNDER OR UNDER ANY LOAN DOCUMENT OR ANY DOCUMENT EXECUTED
IN CONNECTION THEREWITH.
i. COUNTERPARTS. This Amendment may be executed in counterparts, each
of which shall constitute an original, but all of which taken together shall
constitute one and the same instrument.
j. FACSIMILE DELIVERY. Counterparts of this Amendment may be executed
by facsimile signature, which shall be effective upon delivery of a copy of this
Amendment bearing said facsimile signature.
IN WITNESS WHEREOF the parties hereto have set their hands and seals on the
day and date appearing above intending to be legally bound.
ILX ENTITIES:
ILX RESORTS INCORPORATED
By:_______________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman
LOS ABRIGADOS PARTNERS LIMITED PARTNERSHIP
By:_______________________________________
Its:______________________________________
PREMIERE DEVELOPMENT INCORPORATED
By:_______________________________________
Its:______________________________________
ILE SEDONA INCORPORATED
By:_______________________________________
Its:______________________________________
VCA TUCSON INCORPORATED
By:_______________________________________
Its:______________________________________
VCA SOUTH BEND INCORPORATED
By:_______________________________________
Its:______________________________________
VCA NEVADA INCORPORATED
By:_______________________________________
Its:______________________________________
LENDER:
LITCHFIELD FINANCIAL CORPORATION
By:_______________________________________
Its:______________________________________
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