SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT, dated as of April 20, 1999 ("Amendment") to that
certain Loan and Security Agreement, dated as of November 1, 1997, by and
between Vistana Timeshare Mortgage Corp. (the "Borrower") and Dresdner Bank AG
New York and Grand Cayman Branches (the "Lender") (as amended from time to time,
the "Agreement").
WITNESSETH:
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WHEREAS, the parties have previously entered into the Agreement pursuant to
which the Lender agreed to make a revolving loan (the "Loan") to Borrower,
secured by certain level payment promissory notes and related mortgages on
timeshare interests, in the initial maximum principal amount of $70,000,000.00;
WHEREAS, the Lender and Borrower previously have amended certain terms of
the Agreement with regard to the maximum principal amount that may be borrowed,
which became $100,000,000.00, and extension of the maturity date, which became
November 24, 1999;
WHEREAS, the parties now wish to amend Exhibit F to the Agreement to
include in that list of Resorts a new facility, The Lakeside Terrace
Condominiums.
NOW THEREFORE, in consideration of the promises and mutual covenants herein
contained, the parties hereto agree as follows:
SECTION 1. Defined Terms. Unless otherwise amended by the terms of this
Amendment terms used in this Amendment shall have the meanings assigned to them
in the Agreement.
SECTION 2. Amendments to Agreement. Effective upon the execution and
delivery of this Amendment, the Agreement shall be amended as follows:
a. Section 1.80 is hereby amended to read:
"Manager": a Person with whom an Association enters into a Management
Agreement. As of March 1, 1999, such Managers were Points of Colorado,
Inc., with respect to Eagle Pointe, Falcon Pointe and Lakeside
Terrace, Resort Advisory Group, Inc. with respect to Christie Lodge
and Vistana MB Management, Inc. with respect to Embassy Vacation
Resort at Myrtle Beach.
Section 6.2 of the Agreement is hereby amended to add as paragraph
(t):
Renewal of Certificate of Occupancy. The Borrower hereby covenants
and agrees to cause Points of Colorado, Inc. to (i) prior to June 30,
1999 and continuing thereafter, continually renew and deliver to
Lender, evidence, satisfactory to Lender in all respects, that it has
renewed, or further renewed, as applicable, the temporary certificate
of occupancy issued by the Town of Avon with respect to the Lakeside
Terrace Condominiums without interruption between renewals until such
time as a
permanent certificate of occupancy is issued by the Town of Avon, or
by such other local or zoning authority duly authorized to issue such
permanent certificate of occupancy with respect thereto, and (ii)
prior to November 1, 1999, obtain a permanent certificate of occupancy
from the Town of Avon or such other local or zoning authority duly
authorized to issue such permanent certificate of occupancy with
respect to the Lakeside Terrace Condominium. Breach of the foregoing
covenant will not constitute an Event of Default under this Agreement
if prior to the lapse of any temporary certificate of occupancy or
prior to November 1, 1999 if no permanent certificate of occupancy has
been obtained, Borrower causes each of the Designated Instruments
related to Lakeside Terrace Condominium to be completely replaced or
repaid.
c. Exhibit F of the Agreement is hereby amended to designate as an
additional Resort under Section 1.113 of the Agreement, Lakeside
Terrace Condominium, Eagle County, Colorado and to add the following
page thereto, in the form attached hereto.
d. Exhibit L of the Agreement is hereby amended to designate Lakeside
Terrace as an additional Resort referenced in such Exhibit L, and to
add the following page thereto, in the form attached.
SECTION 3. Events of Default. The Borrower represents and warrants that
no Event of Default or, in the good faith and reasonable business judgment of
Borrower, Incipient Default has occurred or is continuing on the date hereof.
SECTION 4. Conditions Precedent. The Borrower represents and warrants that
all conditions precedent to the effectiveness of this Amendment, and all
conditions precedent in Section 4.1(b) and 4.1(c) of the Agreement with respect
to Lakeside Terrace are met. It shall be a condition precedent to the execution
of this Amendment that the Borrower shall have delivered to the Lender an
opinion of either Weil, Gotshal & Manges LLP, or, Dean, Mead, Egerton,
Bloodworth, Capouano & Bozarth, P.A., to the effect that the Agreement, as
amended by this second amendment, the first amendment and the Amended and
Restated Note has been duly authorized, executed and delivered by the Borrower
and are legal, valid, and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
SECTION 5. Effectiveness of Agreement. Except as expressly amended by the
terms of this Amendment, all terms and conditions of the Agreement shall remain
in full force and effect.
SECTION 6. Execution in Counterparts Effectiveness. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
executed by the Borrower and the Lender and be deemed to be an original and all
of which shall constitute together but one and the same agreement.
SECTION 7. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO CONFLICT OF LAW PRINCIPLES.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date hereof.
BORROWER:
VISTANA TIMESHARE MORTGAGE CORP.
a Delaware Corporation
By: /s/ Susan Werth
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Name: Susan Werth
Title: Senior Vice President - Law
LENDER:
DRESDNER BANK AG NEW YORK AND
GRAND CAYMAN BRANCHES
By: /s/ Harry C. Forsyth
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Name: Harry C. Forsyth
Title: Vice President
By: /s/ Edward M. Weber
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Name: Edward M. Weber
Title: Assistant Treasurer
Additional page for Exhibit F of the Loan and Security Agreement, dated November
1, 1997, by and between Vistana Timeshare Mortgage Corp. and Dresdner Bank AG
New York and Grand Cayman Branches.
Legal Description for Lakeside Terrace Condominiums
All that real property situate in Eagle County, Colorado, described as follows:
Units B201, B203, B204, B205, B301, B302, B303, B304, B401, B402, B403, B404,
B501, PHB502, C201, C202, C203, C204, C301, C302, C303, C304, C401, C402, C403,
C404, PHC501, PHC502, FIRST SUPPLEMENT TO CONDOMINIUM MAP OF LAKESIDE TERRACE
CONDOMINIUMS, according to the Map thereof filed March 10, 1999, at Reception
No. 689208, and according to the Condominium Declaration recorded January 30,
1998, at Reception No. 645962, and First Amendment to Condominium Declaration
recorded March 10, 1999, at Reception No. 689207.
Additional page for Exhibit L of the Loan and Security Agreement, dated
November 1, 1997, by and between Vistana Timeshare Mortgage Corp. and Dresdner
Bank AG New York and Grand Cayman Branches.
DILIGENCE ITEMS FOR LAKESIDE TERRACE
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Form of Title Policy (including evidence of tax payment)
Condominium Map
Evidence of Regulatory Approval
Consumer Documents
Timeshare Declaration
Insurance Certificate
List of Fictitious Names
POS and Management Agreement
Temporary Certificate of Occupancy
Zoning Opinion