CONTRACT OF SALE OF TIMESHARE
RECEIVABLES WITH RECOURSE
This CONTRACT OF SALE OF TIMESHARE RECEIVABLES WITH RECOURSE is made
the 4th day of October, 1994, between Bennett Funding International, LTD.
("BFIL") at The Atrium, Two Clinton Square, Syracuse, New York, 13202, and VCA
South Bend Incorporated ("SELLER") at 2777 East Camelback Road, Phoenix, Arizona
85016
RECITALS
WHEREAS, SELLER is in the business of marketing a timeshare resort
known as Varsity Clubs of America, South Bend (the "Project") located at
Mishawaka, Indiana and conveying by Warranty Deed a clear and marketable title
with respect to the individual timeshare interests at the Project and all other
rights of usage and other appurtenances of and pertaining to each such timeshare
interest (collectively "Intervals");
WHEREAS, SELLER, in the course of conducting such business, shall
accept notes and mortgage deeds (collectively "Contracts") (also referred to as
"Receivables") from purchasers of Intervals ("Purchasers") in order to finance
the purchase of Intervals by Purchasers;
WHEREAS, BFIL is engaged, in addition to other activities, in the
business of purchasing Receivables; and,
WHEREAS, SELLER may from time to time offer to sell to and BFIL may
desire to buy Receivables from SELLER under the terms of this Agreement.
W I T N E S S E T H:
NOW, THEREFORE, for good and valuable consideration provided herein and
hereafter, the receipt of which is hereby acknowledged, and pursuant to the
mutual covenants and conditions contained herein, the parties agree as follows:
SECTION I
DEFINITIONS
1.1 In addition to the words and terms elsewhere defined herein, the
following words and terms as used herein shall have the following meanings
unless the context or use clearly indicates another or different meaning or
intent:
"Agreement" means this Contract Of Sale Of Timeshare
Receivables With Recourse and any modifications, changes, or additions hereto;
"Chargebacks" means defaulted Receivables which have been
debited against SELLER pursuant to paragraph 3.1;
"Default Receivables" means any eligible Receivable purchased
by BFIL for which a payment has not been made within ninety (90) days of its due
date:
"Eligible Receivables" means (a) the Receivable must provide
for consecutive monthly installments of principal and interest in U.S. funds
over a term not exceeding eighty-four (84) months from the date of its
execution; (b) the first payment due date must not exceed forty-five (45) days
from the date of offering to BFIL; (c) the Purchaser in all respects, including,
without limitation, its creditworthiness, is acceptable to BFIL in its sole
judgment, has obtained from SELLER an Interval and has not purchased more than
six (6) Intervals in the Project; (d) the Contract is in form and substance
satisfactory to BFIL and validly enforceable in accordance with its terms, upon
the obligor's default under the Receivable, subject only to notice and a
reasonable grace period, payment of the balance of the indebtedness owing under
the Receivable may be immediately accelerated; (e) all off-site improvements
which SELLER is obligated to install or are necessary in connection with the
uses to which SELLER has represented the Intervals may be put have been
completed and all necessary and promised utilities are available, and the uses
of the Intervals for which SELLER has represented it/they may be put and such
improvements conform to all applicable restrictions and laws, necessary
approvals having been obtained; and (f) the Receivable and the applicable sale
transaction comply with all applicable laws, SELLER has performed all its
obligations due to the Purchaser and there are no executory obligations to the
Purchaser to be performed by SELLER, and the Purchaser does not have any right
of rescission, set-off, abatement, counterclaim or the like.
"Financing Statements" means any and all U.C.C. financing
statements (including continuation statements) filed of record from time to time
as required under this Agreement;
"Mortgage" means the mortgage granted BFIL to secure SELLER's
Obligations to BFIL hereunder, including but not limited to the Promissory Note;
"Promissory Note" means the Promissory Note referred to in
Section 2.8 hereof, a copy of which is attached hereto.
"Purchaser" means an obligor under a Receivable and any person
who is obligated to make any payments pursuant to such Receivable;
"Obligation" shall mean any and all indebtedness, obligations,
liabilities, contracts, representations, warranties, and agreements of every
kind and nature between SELLER and BFIL now existing or hereinafter arising, and
now or hereinafter contemplated pursuant to this Agreement or otherwise;
"Receivable Payments" means those payments on the
Receivable(s) which have been sold, assigned, transferred, and set over to BFIL
pursuant to this Agreement;
"Receivables" (a) the Receivables which are, now or hereafter,
assigned, endorsed and delivered to BFIL pursuant hereto; (b) all Contracts,
notes, deeds, deeds of trust, guaranties and other documents or instruments
evidencing or securing the obligations of the Purchasers and/or any other person
primarily or secondarily liable on such Receivables; (c) all policies of
insurance if any related to such Receivables or delivered in connection
therewith; (d) if any, all rights under escrow agreements and all impound and/or
reserve accounts pertaining to the foregoing; (e) all files, books and records
of SELLER pertaining to any of the foregoing; and (f) the proceeds from the
foregoing;
"Recourse" means that SELLER is obligated to pay BFIL a sum
certain under a defaulted Receivable as subject to Section 3.1;
"Related Documents" means other documents and agreements
between SELLER and BFIL executed even date herewith which form the basis of the
transaction, together with any and all renewals, extensions, amendments,
restatements or replacements thereof, whether now or hereafter existing.
"U.C.C." means the Uniform Commercial Code as enacted in
Indiana and Arizona and as now or hereinafter amended.
SECTION II
SUBJECT MATTER OF SALE AND PAYMENT
2.1 SELLER shall, from time to time, offer to sell, transfer and assign
to BFIL Receivables arising out of the sale of Intervals at the Project. The
Contracts offered to BFIL shall be in the form of those attached as Exhibit A,
and no Contract in any other form shall be offered to BFIL unless such different
form has previously been approved by BFIL in writing. Concurrently with the
transfer of each Contract, SELLER shall transfer and assign to BFIL the
contract, note, mortgage, loan applications, financial statements,
truth-in-lending disclosure statement, the closing or settlement statement and
the receipt for timeshare sale documents.
2.2 All Contracts hereafter offered to BFIL shall be offered under and
pursuant to the terms, conditions, representations, covenants, provisions and
warranties set forth herein and in said Contracts, unless otherwise expressly
agreed to in writing at the time such Contracts shall be offered to BFIL. This
Agreement shall govern the sale, transfer, and assignment of all Contracts by
SELLER to BFIL arising out of the Project. BFIL shall be given a reasonable
opportunity, in each case, to investigate the credit of any and to qualify the
Purchaser obligated upon the Contract and shall not be deemed to have purchased
any Contract until credit therefor has been noted on BFIL's books and records to
an account of SELLER or until receipt of payment by SELLER, whichever occurs
first. BFIL will use its best efforts to disburse, within ten (10) business days
after the receipt of the Receivables (other than title insurance) the funds to
which SELLER would be entitled from any Receivable accepted by BFIL.
2.2(a) Total aggregate principal balance of all Contracts assigned to
BFIL in all phases of the Project shall not exceed Ten Million Dollars
($10,000,000.00), unless such Contract is renewed by BFIL in its sole
discretion.
2.3 All Contracts purchased by BFIL shall be secured by a purchase
money obligation pursuant to a mortgage deed given by the Purchaser of the
Interval to the SELLER and title insurance which shall be a first priority
position on the Interval more particularly described in the individual
Contracts.
2.4 BFIL shall pay SELLER a discounted purchase price for Eligible
Receivables calculated to yield a rate of interest equal to thirteen and
one-half percent (13.5%) or twelve and one-half percent (12.5%) for Contracts
paid by electronic funds transfer ("Purchase Price"). The present value of the
"interest spread," if any, shall be paid at the time of closing and calculated
or amortized based over the remaining term of the individual Receivable. The
"interest spread" is the difference payable on the Receivable compared to the
yield required to be paid to BFIL.
2.5 BFIL shall pay SELLER eighty-five percent (85%) of the Purchase
Price on closing of the Receivable subject to paragraphs 2.1, 2.2 and 2.6 above.
2.6 BFIL shall pay SELLER the remaining fifteen (15%) percent of the
Purchase Price upon BFIL's receipt of all payments due it under the purchased
Receivable from the Purchaser. SELLER acknowledges that it does not have the
right to receive the remaining fifteen (15%) percent payment until BFIL receives
all sums due it under the purchased Receivable.
2.7 Contracts offered to BFIL will evolve from valid purchase contracts
arising out of sales of Intervals at the Project. The Contracts shall call for
successive amortized monthly installments of principal and interest not more
than eight-four (84) months.
2.8 BFIL shall also provide SELLER a Construction Loan secured by a
first mortgage on all the real estate and personal property of SELLER including
but not limited to the proceeds of all presently unsold timeshare intervals and
the proceeds of the sale of timeshare intervals sold in the future. The release
payment for each interval shall be $2,180.00 and shall be applied to principal.
The Construction Loan shall be evidenced by a Promissory Note in a principal
amount not to exceed Five Million Dollars ($5,000,000.00). Interest shall be
paid in full on a monthly basis and any outstanding principal and interest shall
be payable in full 36 months after the last disbursement under the terms of the
Construction Loan Agreement.
2.9 The entire outstanding amount due under this Agreement may be
prepayable in whole but not in part at any time, upon not less than thirty (30)
days prior irrevocable written notice to BFIL. Any prepayment of aggregate
principal amounts due under the Contracts shall be accompanied by all interest
accrued to the date of prepayment, any fees or expenses payable and a premium
with respect to outstanding principal as follows:
Pre-Payment 7 Year Paper 5 Year Paper
Period Pre-Payment Penalty Pre-Payment Penalty
------ ------------------- -------------------
During 1st year 7% 5%
During 2nd year 6% 4%
During 3rd year 5% 3%
During 4th year 4% 2%
During 5th year 3% 1%
During 6th year 2%
During 7th year 1%
The aforementioned Pre-Payment Penalty does not apply to the individual obligors
should they elect to pre-pay or buyout their respective obligations.
SECTION III
RECOURSE
3.1 Upon the occurrence of an Event of Default as defined in Section IX
below, or if payment of any installment payable under a Contract has been in
default for a period of ninety (90) days or more, SELLER hereby unconditionally
agrees to repurchase said Contract from BFIL within ten (10) days after demand
or, if SELLER shall not be otherwise in material default (excepting timely cure
of defaulted Receivable by replacement), SELLER may, at its option, replace the
Contract within ten (10) days after demand with another Contract acceptable to
BFIL as above-described having a principal balance term and yield not less than
the Contract being replaced such replacement shall also be Recourse. The
repurchase price (the "Contract Repurchase Price") of any Contract which SELLER
is required to repurchase pursuant to this paragraph shall be a sum equal to the
principal balance of the defaulted Contract (calculated with the same discount,
if any, as the original Purchase Price) plus accrued interest less any balance
remaining of the purchase price not yet paid to SELLER pursuant to Section 2.6.
Upon payment to BFIL of the Contract Repurchase Price or
substitution of a replacement Contract, the Contract shall be transferred to
SELLER by assignment free and clear of any rights of any person claiming through
or under BFIL and without recourse. Transfer shall include endorsement without
recourse and delivery of the Notes to the SELLER, re-assignment of the mortgage
in recordable form and return of all Related Documents regarding the Receivable.
SECTION IV
WARRANTIES AND REPRESENTATIONS
4.1 In connection with the execution of this Agreement and the Related
Documents, SELLER represents and warrants and, so long as any balance is
outstanding on any purchased Receivable, shall be deemed to represent and
warrant continuously to BFIL as follows in paragraph 4.2 through and including
4.16 of this Section IV;
4.2 SELLER is a validly existing corporation under the laws of the
State of Arizona. SELLER is qualified to do business in Indiana and is in good
standing under the laws of such other jurisdictions as required to conduct its
business as presently conducted, and has all licenses and permits necessary to
conduct its business as and where presently conducted.
4.3 The SELLER has the power and authority to (a) own its property and
transact the business in which it is engaged or presently proposes to engage;
and (b) execute, deliver and perform this Agreement and Related Documents
requiring execution, delivery and performance by it. The execution, delivery and
performance of this Agreement and the Related Documents have been duly
authorized by all requisite action required by law and by its Articles of
Incorporation and By-Laws. The execution, delivery and performance of this
Agreement and the Related Documents by SELLER does not and will not constitute a
breach or violation of (a) Certificate of Incorporation and By-Laws, and (b) any
other instrument or contract between the parties or any other law,
administrative regulation or court decree by which the SELLER is bound. SELLER
is not in default under any indenture, mortgage, deed of trust, agreement or
other instrument to which it is a party.
4.4 This Agreement and each of the Related Documents are valid, binding
and enforceable in accordance with their terms and do not require the consent or
approval of any governmental body, agency or authority.
4.5 There are no actions, suits or proceedings served or to the
knowledge of SELLER pending or threatened, against or affecting SELLER before
any court, arbitrator or governmental or administrative body or agency which
might result in any material adverse change in the business, operations,
properties or assets or in the condition, financial or otherwise, of SELLER.
SELLER is not in default in any material respect under any applicable statute,
rule, order, decree or regulation of any court, arbitrator or governmental
agency having jurisdiction over it.
4.6 SELLER has filed tax returns, income or otherwise, which are
required to be filed by it and has paid or established adequate reserves for all
taxes which have become due pursuant to such returns or pursuant to any
assessment received by them. SELLER has no knowledge of any unassessed tax or
tax deficiency proposed or threatened against it.
4.7 The financial statements of SELLER delivered to BFIL are correct
and fairly present the financial condition of SELLER as of the date of such
statements. There has been no material adverse change in the condition,
financial or otherwise, of SELLER since the date of such statements.
4.8 No part of this Agreement or the Related Documents or any
certificate or statement furnished by SELLER to BFIL contains or will contain on
any closing date any untrue statement of a material fact necessary in order to
make the statements contained herein or therein with respect to SELLER not
misleading. To the best of SELLER's knowledge, there is no fact (other than
facts relating to general economic conditions) which materially adversely
affects the business, operations, affairs, conditions, properties or assets of
SELLER which has not been set forth in the documents, certificate or statement
furnished to BFIL.
4.9 The address of the chief executive officer and chief place of
business of the SELLER is 2777 East Camelback Road, Phoenix, AZ 85016. All
records (including computer records pertaining to the purchased Receivables,
collections thereon and contracts giving rise thereto) are kept at 2777 East
Camelback Road, Phoenix, AZ 85016.
4.10 Each Receivable purchased by BFIL shall comply with all attributes
of an installment loan obligation as described by Federal, and applicable State
statutes.
4.11 Each Receivable shall comply with all applicable Federal and State
requirements and regulations, including, without limitation, truth-in-lending
requirements, Federal and State disclosures requirements and regulations, and
other requirements pertaining to the enforcement or enforceability of the
Receivables.
4.12 The Receivables and assignments of the Receivables shall be fully
enforceable in accordance with their terms.
4.13 SELLER has complied in all respects with all Federal, State and
local laws, ordinances, regulations and orders applicable to its business.
SELLER has all Federal, State and local governmental licenses and permits
material to and necessary in the conduct of its business including, but not
limited to the origination, purchasing and sale of consumer Receivables and such
licenses are in full force and effect and no violations are or have been
recorded in respect to any such licenses or permits and no proceeding is pending
or threatened to revoke any thereof.
4.14 The Receivables are genuine and in all respects what they purport
to be and enforceable according to their terms; all statements contained in the
Receivables are true and that all unpaid balances shown therein are correct;
and, the Receivables, and each of the Receivable documents and the obligations
which they evidence are, and will continue to be, free and clear of all
defenses, setoffs, counterclaims, liens and encumbrances of every kind and
nature.
4.15 That at the time of the execution of this Agreement, SELLER had
good title to the Receivables and full right to enter into the Receivables;
services and facilities have been made available to the Purchaser in
satisfactory condition and have been accepted by the Purchaser under the terms
of the Receivables; all parties to the Receivables have full capacity to
contract; all filing and recording required by law have been completed and
complied with; and, that any requirement of new or further filing, recording or
renewals thereof shall be complied with by SELLER and that BFIL may undertake
same but shall be without any responsibility or obligations whatsoever for any
omission or invalid accomplishment thereof.
4.16 That SELLER shall have no authority to accept any collections of
any sums under the Receivables unless BFIL consents thereto, except for dues.
Upon default of a Receivable and without releasing the liability of SELLER, BFIL
may, in its own discretion, grant extensions of time of payment to and
compromise or release claims against the Purchaser who is in default on the
Receivables upon thirty (30) days notice to SELLER. During this thirty (30) day
period the SELLER shall have the right to cure the default with a Purchaser.
SECTION V
INDEMNIFICATION
5.1 SELLER agrees to indemnify and hold harmless BFIL against any and
all losses, claims, damages, expenses or liabilities, joint or several (and
actions in respect thereof), to which BFIL may become subject, under Federal or
State laws or regulations, at common law or otherwise, insofar as such losses,
claims, damages, expenses, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact contained
hereunder or in any Related Document or in the Receivables; and, upon notice,
will reimburse BFIL for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action.
5.2 This indemnity provision agreement shall be in addition to any
liability which the SELLER may have at common law or otherwise.
SECTION VI
ASSIGNMENT
6.1 As to the Receivables that have been sold to BFIL, SELLER shall not
assign, sublet, lend, transfer, pledge, or hypothecate any of such Receivables
or this Agreement. BFIL however may assign, transfer, pledge, or sell its
interest in any or all Receivables or this Agreement or the related documents.
Upon notification of such assignment, SELLER shall remit any payments due
hereunder from the SELLER directly to the address set forth on the notification.
In no event shall any collateral assignee of BFIL be obligated to perform any
duty, covenant, condition, or promise under this Agreement or the Related
Documents. It is understood and agreed that on any collateral assignment, BFIL
shall be obligated to perform its obligations hereunder.
SECTION VII
PROHIBITION AGAINST INDEBTEDNESS
7.1 That during the pendency of this Agreement and the Related
Documents, and, in any event, until BFIL is in receipt of all monies and other
sums due BFIL from SELLER hereunder, SELLER shall not do or cause to be done any
of the following without the prior written approval of BFIL, which approval
shall not be unreasonably withheld:
(a) Sell or lease all or substantially all of its assets out
of the ordinary course of its business or enter into any merger, consolidation
or other agreement for the sale of the business;
(b) Except as specifically provided hereunder, mortgage,
pledge, or voluntarily subject to any lien or encumber any Receivable;
(c) Change the type or character or the standard operation of
SELLER.
SECTION VIII
TAX
8.1 In the event that any sales tax is levied against BFIL pursuant to
the sale and purchase of the Receivables or upon the stream of payments
generated thereon, SELLER agrees to pay said sales tax upon sixty (60) days
notice.
SECTION IX
EVENT OF DEFAULT
9.1 The occurrence of any of the following events shall constitute an
"Event of Default" as such term is used herein:
(a) SELLER's failure to pay when due any amount payable under
this Agreement and said failure continues for a period of thirty (30) days from
written notice thereof;
(b) Any statement, representation or warranty made herein or
in any supporting financial statement by or on behalf of SELLER shall prove to
have been false when made or breached in any material respect the breach of
which deprives BFIL of any material economic value of its bargain;
(c) Failure to observe or perform any other covenant or
obligation contained in this Agreement or any Related Document, the breach of
which deprives BFIL of any material economic value of its bargain;
(d) The commission of any act of bankruptcy or the making of a
general assignment for the benefit of creditors, or the institution of any
proceeding by or against SELLER under Federal or State bankruptcy or insolvency
laws;
(e) Termination of contract or licensing agreement with
reciprocal use network organization unless a comparable contract or licensing
agreement is entered into;
(f) Termination or suspension of the operation or the SELLER;
(g) The aggregate of the stream of payments of chargeback
Receivables exceeds fifteen (15%) percent of the aggregate stream of payments on
all outstanding Receivables sold to BFIL to date hereunder;
(h) The number of defaulted Receivables exceeds fifteen (15%)
percent of all outstanding Receivables sold to BFIL to date hereunder; or,
(i) Any act of SELLER which materially and adversely limits
the rights of Interval Purchasers to use the common areas and recreational
facilities of the Project.
SECTION X
RIGHTS ON DEFAULT
10.1 SELLER agrees that when any Event of Default has occurred and is
continuing, BFIL may (1) proceed to exercise any rights, privileges and remedies
that SELLER would be entitled to exercise as payee under the Receivables either
in the name of BFIL or with the full power in the name of SELLER as its true and
lawful attorney-in-fact for the use and benefit of BFIL with respect to such
Receivables, (2) sue SELLER for all recourse obligations which remain unpaid,
and (3) sue SELLER for damages for breach of contract.
10.2 No delay or omission of BFIL to exercise any right or power
arising from any Event of Default shall exhaust or impair any such right or
power or prevent its exercise during the continuance of such default. No waiver
by BFIL of any such Event of Default, whether such waiver be full or partial,
shall extend to or be taken to affect any subsequent Event of Default, or to
impair the rights resulting therefrom except as may be otherwise provided
therein. No remedy hereunder is intended to be exclusive of any other remedy but
each and every remedy given hereunder or otherwise existing shall be cumulative;
nor shall the giving, taking or enforcement of any other or additional security,
collateral or guaranty, waive any rights, powers or remedies hereunder, nor
shall BFIL be required to look first to, enforce or exhaust such other or
additional security, collateral or guaranties.
SECTION XI
NOTICE
11. The parties agree that any notice required hereunder shall be sent
by certified mail, return receipt requested to the last known business address
of the respective parties and by forwarding a copy of the notice by regular
first-class U.S. mail, unless a specific notice requirement is set forth herein.
(i) VCA South Bend
Incorporated Mr. Joseph P. Martori
2777 East Camelback Road
Phoenix, Arizona 85016
and a copy to
Ms. Nancy J. Stone
VCA South Bend Incorporated
2777 East Camelback Road
Phoenix, Arizona 85016
(ii) Bennett Funding International, Ltd.
The Atrium
Two Clinton Square
Syracuse, New York 13202
ATTN: Francis Goffredo
and a copy to
Edward J. Gaudino, Esq.
Associate General Counsel
Two Clinton Square
Syracuse, New York 13202
SECTION XII
FINANCIAL STATEMENTS AND SALES REPORTS OF SELLER
12.1 So long as this Agreement is in effect, SELLER shall deliver to
BFIL, within one hundred twenty (120) days of the end of its respective fiscal
year, a copy of its annual financial statements which shall be prepared and
certified as complete and correct by the principal financial officer of SELLER.
Within forty-five (45) days after the end of each fiscal quarter, SELLER shall
deliver to BFIL a copy of its unaudited quarterly statements covering such
quarter. SELLER shall deliver to BFIL a full report of all completed sales and
all pending contracts each months.
SECTION XIII
SERVICING AND COLLECTION
13.1 SELLER shall furnish BFIL with an executed letter on SELLER's
letterhead advising Purchasers of the sale and assignment of the Receivables
hereunder to BFIL.
13.2 BFIL shall invoice Purchasers on a monthly basis. BFIL shall
employ collection efforts consisting solely of past-due letters and telephone
calls. Upon repurchase of chargeback Receivables by SELLER from BFIL, SELLER
shall bear all responsibility for collection and legal action.
13.3 BFIL shall provide SELLER with a monthly aging report of the
Receivables.
SECTION XIV
TERMINATION
14.1 This agreement will not terminate prior to March 31, 1996, unless
an Event of Default occurs as described herein, and may be extended another
eighteen (18) months at the discretion of BFIL. Upon the occurrence of any Event
of Default, BFIL may, with or without proceeding with such sale or foreclosure
or demanding payment of the obligations, without notice, terminate BFIL's
further performance under this Agreement to purchase Eligible Receivables,
without further liability or obligation by BFIL, and may also, at any time,
appropriate and apply on any Obligations and any and all reserves, or other
monies due or owing to the SELLER held by BFIL hereunder or under any other
financing agreement or otherwise, whether accrued or not. Neither such
termination, nor the termination of this Agreement by lapse of time, the giving
of notice or otherwise shall absolve, release or otherwise affect the liability
of the SELLER in respect of transactions prior to such termination, or affect
any of the liens, security interests, rights, powers and remedies of BFIL
hereunder, but they shall, in all events, continue until all of the Obligations
are satisfied.
SECTION XV
LEGAL
15.1 This Agreement and the Related Documents constitute the entire
agreement and understanding between the parties.
15.2 This Agreement and Related Documents may not be amended, changed,
modified, or supplemented except in writing executed by both parties herein.
15.3 In the event any provision of this Agreement or any Related
Document, including the remedies upon default, be declared invalid, such
provision or remedy shall be inapplicable and deemed omitted, but the remaining
provisions and remedies shall be given full force and effect.
15.4 This Agreement and the Related Documents shall be deemed to have
been negotiated, made and executed in Onondaga County, State of New York,
regardless of the order in which the signatures of the parties shall be affixed
hereto.
15.5 This Agreement and the Related Documents shall be interpreted,
construed, and enforced in accordance with the laws and public policies of the
State of New York, with regard to New York's Conflict of Laws Rules and Public
Policies.
15.6 In any action to enforce the provisions of this Agreement or the
Related Documents, personal jurisdiction and venue shall be in the United States
District Court for the Northern District of New York.
15.7 This Agreement and the Related Documents shall be binding upon and
inure to the benefit of the parties to it and their respective successors and
assigns.
15.8 The parties acknowledge that this Agreement and the Related
Documents a supersede all prior negotiations, understandings and agreements
between the parties and that this Agreement is the full and final expression of
the parties. Any statements made by representatives of each party shall not be
admissible to vary, change, modify or amend the terms and conditions of this
Agreement and the Related Documents except in conformity with paragraph 15.2.
SECTION XVI
SPECIAL PROVISIONS
16.1 In order to insure payment and performance hereunder by SELLER,
the guaranty and subordination of ILX Incorporated shall be required.
16.2 Upon closing SELLER shall pay BFIL the sum of Five Thousand
($5,000.00) Dollars for costs (already paid). 16.3 Closing is subject to receipt
and review to SELLER's and BFIL's mutual satisfaction of each document required
to be provided to SELLER and more particularly described in the Closing Letter
among SELLER and BFIL.
16.4 The parties shall use the services of St. Joseph Title
Corporation, an Escrow Agent for the matters addressed below.
(a) Receipt of the Receivables and other documents set forth
in 2.1 above.
(b) Recordation of applicable mortgages, assignments and
releases;
(c) Issuance of satisfactory title insurance to BFIL on the
property described in the Mortgage securing SELLER's Obligations to
BFIL under this Agreement and Related Documents; and
(d) Transmittal of remaining proceeds to SELLER.
16.5 SELLER shall grant to BFIL the right of first refusal to purchase
all Receivables generated in connection with VCA South Bend Incorporated
16.6 SELLER shall grant BFIL or its assigns the right to solicit the
obligors under the purchased Receivables concerning travel related services
offered by BFIL or its assigns; and
16.7 SELLER shall cause to be delivered to BFIL evidence that the
purported releases for Purchase Money Deeds of Trust have been duly filed and
recorded contemporaneous with this loan closing.
IN WITNESS WHEREOF, the parties set their hands the date above first
written.
Bennett Funding International, LTD. VCA South Bend Incorporated
By: /S/ By: Joseph P. Martori
-------------------------------- ---------------------------------
Title: CEO Title: Chairman
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GUARANTOR:
ILX Incorporated
By Joseph P. Martori
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Title Chairman
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