EXHIBIT 10.1
SECOND MASTER LOAN MODIFICATION AGREEMENT
THIS SECOND MASTER LOAN MODIFICATION AGREEMENT (the "Second Master
Modification Agreement") is made and entered into as of the 7th day of
September, 2001, by and among EQUIVEST FINANCE, INC., a Delaware corporation
("EFI"), EQUIVEST CAPITAL, INC. (f/k/a Resort Funding, Inc.), a Delaware
corporation ("RFI"), EASTERN RESORTS COMPANY, LLC, a Rhode Island limited
liability company ("Company"), EASTERN RESORTS CORPORATION, a Delaware
corporation ("ERC"), OCEAN CITY COCONUT MALORIE RESORT, INC., a Maryland
corporation ("Coconut Malorie"), BLUEBEARD'S CASTLE, INC., a United States
Virgin Island corporation ("Bluebeard"), CASTLE ACQUISITION, INC., a United
States Virgin Island corporation ("Castle"), AVENUE PLAZA LLC, a Louisiana
limited liability company ("Avenue Plaza"), EQUIVEST WASHINGTON, INC., a
Delaware corporation (f/k/a EFI D.C. Acquisition, Inc., successor to the
interests of Capital City Suites, Inc.) ("EFI DC"), and EQUIVEST TEXAS, INC., a
Delaware corporation ("Equivest Texas"), (EFI, RFI, the Company, ERC, Coconut
Malorie, Bluebeard, Castle, Avenue Plaza, EFI DC and Equivest Texas shall be
individually referred to as the "Borrower" and collectively referred to as the
"Borrowers"), jointly and severally, and EFI, EQUIVEST MARYLAND, INC., a
Delaware corporation (f/k/a EFI Maryland Acquisition, Inc.) ("Equivest
Maryland"), EQUIVEST LOUISIANA, INC., a Delaware corporation (f/k/a EFI
Louisiana Acquisition, Inc.) ("Equivest Louisiana"), and EQUIVEST ST. THOMAS,
INC., a United States Virgin Islands corporation (f/k/a EFI St. Thomas
Acquisition, Inc.) ("Equivest St. Thomas"), (EFI, Equivest Maryland, Equivest
Louisiana and Equivest St. Thomas shall be individually referred to as the
"Guarantor" and collectively referred to as the "Guarantors"), jointly and
severally, and CAPITALSOURCE FINANCE LLC, a Delaware limited liability company
("CapitalSource") and CAPITALSOURCE HOLDINGS LLC, a Delaware limited liability
company ("CapitalSource Holdings").
RECITALS
EASTERN RESORTS BRIDGE LOAN
1. EFI, the Company, RFI, ERC, jointly and severally, and Credit Suisse
First Boston Mortgage Capital LLC, a Delaware limited liability company ("CSFB")
are parties to that certain Loan and Security Agreement dated as of August 25,
1998 (the "Original Bridge Loan Agreement") pursuant to which CSFB agreed to
make a loan to EFI, the Company, RFI and ERC in the maximum principal amount of
$15,000,000 (the "Bridge Loan") for the purpose of acquiring the outstanding
capital stock and interest of Eastern Resorts Corporation, a Rhode Island
corporation, all pursuant to the terms, provisions, and conditions set forth in
the Original Bridge Loan Agreement and various other documents and instruments
executed in connection therewith, including but not limited to that certain
Promissory Note dated as of August 25, 1998 executed by EFI, the Company, RFI
and ERC in favor or CSFB (the "Original Bridge Loan Note") and secured by the
"Collateral" (as such term is defined in the Original Bridge Loan Agreement). 2.
Pursuant to that certain Loan Modification Agreement dated as of December 11,
1998, by and among EFI, the Company, ERC and CSFB, certain additional amendments
and modifications to the Original Bridge Loan Agreement were made including,
without limitation, an extension of the Maturity Date.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 1
EXHIBIT 10.1
3. Pursuant to that certain letter agreement dated November 15, 2000 by
and among EFI, RFI, the Company, ERC and CSFB ("November Extension"), the
Maturity Date of the Bridge Loan was extended to January 5, 2001.
4. Pursuant to that certain letter agreement dated December 21, 2000 by
and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and CSFB
("December Extension"), the Maturity Date of the Bridge Loan was extended to
January 31, 2001.
5. Pursuant to that certain letter agreement dated January 31, 2001 by
and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and CSFB
("January Extension"), the Maturity Date of the Bridge Loan was extended to
February 16, 2001.
6. Pursuant to that certain letter agreement dated March 22, 2001 by
and among EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and CSFB
("First March Extension"), the Maturity Date of the Bridge Loan was extended to
March 30, 2001.
7. Pursuant to that certain letter agreement dated March 30, 2001 by
and between EFI, RFI, the Company, ERC, Avenue Plaza, Equivest Louisiana and
CSFB "Second March Extension"), the Maturity Date of the Bridge Loan was
extended to April 20, 2001 (the November Extension, December Extension, January
Extension, First March Extension and Second March Extension are sometimes
referenced to herein, collectively, as the "Extension Letters").
8. Pursuant to that certain Master Loan Modification Agreement dated
April 20, 2001 by and between EFI, RFI, the Company, ERC, Coconut Malorie,
Bluebeard, Castle, Avenue Plaza, EFI DC, Equivest Maryland, Equivest Louisiana,
Equivest St. Thomas and CSFB (the "First Master Modification Agreement"), (i)
certain additional amendments and modifications to the Bridge Loan were made,
including, among other amendments, extending the maturity date thereof to
February 16, 2002, cross-defaulting and cross-collateralizing the Bridge Loan
with all of the other Loans (hereinafter defined) and acknowledging the
execution of the Second Restated Bridge Loan Note described below; and (ii) EFI,
the Company, and ERC ratified, reaffirmed and assumed all of the terms,
promises, conditions, representations, covenants, warranties, responsibilities
and obligations under the Bridge Loan.
9. The Original Bridge Loan Note was amended and restated by that
certain Amended and Restated Promissory Note dated December 11, 1998 (the "First
Restated Bridge Loan Note") in the original principal amount of $15,000,000,
made by EFI, the Company, ERC and RFI, jointly and severally, payable to the
order of CSFB, and was further amended and restated by that certain Second
Amended and Restated Promissory Note dated April 20, 2001 (the "Second Restated
Bridge Loan Note") in the original principal amount of $15,000,000, made by EFI,
the Company, ERC and RFI, jointly and severally, payable to the order of CSFB
(the Original Bridge Loan Note, as amended and restated by the First Restated
Bridge Loan Note and the Second Restated Bridge Loan Note, shall hereafter be
collectively referred to as the "Bridge Loan Note").
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 2
EXHIBIT 10.1
10. The Original Bridge Loan Agreement, as amended and modified by (i)
a Loan Modification Agreement dated as of December 11, 1998, (ii) the Extension
Letters, and (iii) the First Master Modification Agreement, and any other
amendments and modifications now or hereafter executed shall be referred to
herein as the "Bridge Loan Agreement."
11. As used herein, the Bridge Loan Agreement, the Bridge Loan Note and
all promissory notes, guaranties, assignments, mortgages, financing statements,
exhibits and all other related documents or instruments and all amendments or
modifications to any of the above executed in connection with the Bridge Loan
shall be referred to herein collectively as the "Bridge Loan Documents."
COCONUT MALORIE RESORT, OCEAN CITY, MARYLAND
12. Coconut Malorie executed that certain Acquisition and Development
Promissory Note dated as of October 24, 1997 in favor of RFI (the "Original
Ocean City Note") evidencing a loan by RFI to Coconut Malorie in the maximum
principal amount of $5,500,000 (the "Ocean City Loan"), and certain other loan
documents including, without limitation, (i) an Acquisition and Development Loan
Agreement dated as of October 24, 1997 (the "Original Ocean City Loan
Agreement"), by and between RFI and Coconut Malorie relating to the acquisition
and development of the Coconut Malorie Resort in Ocean City, Maryland, and (ii)
a Mortgage and Security Agreement and UCC-1 Financing Statement, dated October
24, 1997 (the "Ocean City Mortgage"), executed by Coconut Malorie in favor of
RFI, recorded in Liber 2445, at Folio 574 of the Land Records of Worcester
County, Maryland, as assigned by RFI to CSFB pursuant to that certain Assignment
of Mortgage and Other Loan Documents dated March 26, 1999 by RFI to and in favor
of CSFB, recorded in Liber 2685, at Folio 85 of the Land Records of Worcester
County, Maryland.
13. Pursuant to that certain Purchase Agreement dated as of February
16, 1999, by and among EFI, Kosmas Group International, Inc., formerly known as
Kosmas Resort Group, Inc. ("KGI"), Kosmas Caribbean Holdings Corporation
("KCHC"), and various other parties, KCHC agreed to sell to EFI or its designee
all issued and outstanding capital stock of Coconut Malorie and, pursuant to
that certain Assignment of Mortgage and Other Loan Documents dated as of March
26, 1999 executed by and between CSFB and RFI, (i) CSFB consented to the
acquisition by EFI Maryland of all of the outstanding capital stock of Coconut
Malorie, (ii) Coconut Malorie ratified, reaffirmed and assumed all of the terms,
provisions, conditions, representations, covenants, warranties, responsibilities
and obligations under the Ocean City Loan and (iii) Coconut Malorie executed an
Acquisition and Development Promissory Note dated as of March 26, 1999, in the
maximum principal amount of $4,521,150 in favor of CSFB (the "First Restated
Ocean City Note"), which amended and restated in its entirety the Original Ocean
City Note, and (iv) EFI and EFI Maryland executed a Guaranty and Subordination
Agreement dated March 26, 1999 in favor of CSFB (the "Original Ocean City
Guaranty").
14. Pursuant to the First Master Modification Agreement, (i) certain
additional amendments and modifications to the Ocean City Loan were made,
including, among other amendments, extending the maturity date thereof to
February 16, 2002, cross-defaulting and cross-collateralizing the Ocean City
Loan with all the other Loans (hereinafter defined), and acknowledging the
execution of the Second Restated Ocean City Note described below, (ii) Coconut
Malorie, EFI and Equivest Maryland ratified, reaffirmed and assumed all of the
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 3
EXHIBIT 10.1
terms, provisions, conditions, representations, covenants, warranties,
responsibilities and obligations under the Ocean City Loan, as modified, and
(iii) EFI and Equivest Maryland executed that certain Amended and Restated
Guaranty and Subordination Agreement dated April 20, 2001 (the "Restated Ocean
City Guaranty"), amending and restating the Original Ocean City Guaranty (the
Original Ocean City Guaranty, as amended and restated by the Restated Ocean City
Guaranty, shall be referred to hereafter as the "Ocean City Guaranty").
15. The First Restated Ocean City Note was amended and restated by that
certain Amended and Restated Acquisition and Development Promissory Note dated
April 20, 2001 (the "Second Restated Ocean City Note") in the original principal
amount of $4,521,150, made by Coconut Malorie, payable to the order of CSFB (the
First Restated Ocean City Note, as amended and restated by the Second Restated
Ocean City Note, shall be referred to hereafter as the "Ocean City Note").
16. The Original Ocean City Loan Agreement, as amended and modified by
certain of the Extension Letters and the First Master Modification Agreement,
and any other amendments and modifications now or hereafter executed shall be
referred to herein as the "Ocean City Loan Agreement."
17. As used herein, the Ocean City Mortgage, the Ocean City Guaranty, the
Ocean City Loan Agreement, the Ocean City Note and all promissory notes,
guaranties, assignments, mortgages, financing statements, exhibits and all other
related documents or instruments and all amendments or modifications to any of
the above executed in connection with the Ocean City Loan shall be referred to
herein collectively as the "Ocean City Loan Documents." AVENUE PLAZA, NEW
ORLEANS, LOUISIANA
18. CSFB agreed to make a loan to Avenue Plaza in the maximum amount of
$19,000,000 (the "Avenue Plaza Loan"), which Avenue Plaza Loan is evidenced by
that certain Promissory Note dated December 19, 1997, made by Avenue Plaza to
the order of CSFB in the original principal amount of $19,000,000 (the "Original
Avenue Plaza Note"). In 1998, the Original Avenue Plaza Note was endorsed and
transferred by CSFB to Credit Suisse First Boston Structured Loan
Participations, Series 1998-P1 Corporation, a Delaware corporation ("CSFB
1998-P1") and subsequently endorsed and transferred back to CSFB by CSFB
1998-P1.
19. The Avenue Plaza Loan is secured in part by (i) an Act of Mortgage,
Security Agreement and Assignment of Leases and Rentals dated December 19, 1997
(the "Avenue Plaza Mortgage"), executed by Avenue Plaza in favor of CSFB and
recorded in the mortgage office under MIN 447902, and in the conveyance office
under CIN 152019, N.A. No. 98-01491, Orleans Parish, Louisiana, and (ii) an
Assignment of Certificates, Permits, Licenses, Approvals, Bonds, and Warranties,
an Assignment of Management Agreement, and an Assignment of Borrower's Rights as
Developer Under Declaration and Bylaws, each of which is dated December 19, 1997
and executed by Avenue Plaza in favor of CSFB.
20. The Avenue Plaza Loan was, at one time, absolutely and unconditionally
guaranteed pursuant to that certain Guaranty and Subordination Agreement dated
December 19, 1997 ("Original KGI Avenue Plaza Guaranty") by KGI, however, KGI
was subsequently released from its obligations thereunder pursuant to the Mutual
Release described below.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 4
EXHIBIT 10.1
21. Pursuant to that certain Purchase Agreement dated as of February 16,
1999, by and among EFI, KGI, and various other parties, KGI agreed to sell to
EFI or its designee all right, title, and interest of KGI in and to Avenue
Plaza, and EFI agreed to purchase or cause the purchase of same from KGI and,
pursuant to that certain Loan Assumption Agreement dated as of March 26, 1999,
by and among CSFB 1998-P1, EFI, Equivest Louisiana and Avenue Plaza, (i) CSFB
1998-P1 consented to Equivest Louisiana's acquisition of all right, title, and
interest of KGI in and to Avenue Plaza, (ii) EFI, Equivest Louisiana and Avenue
Plaza ratified, reaffirmed and assumed all of the terms, provisions, conditions,
representations, covenants, warranties, responsibilities and obligations under
the Avenue Plaza Loan, as modified, (iii) EFI and Equivest Louisiana executed
that certain Guaranty and Subordination Agreement dated March 26, 1999 (the
"Original EFI Avenue Plaza Guaranty"), and (iv) CSFB, CSFB 1998-P1, KGI and
certain other parties executed a Mutual Release dated March 26, 1999 ("Mutual
Release") pursuant to which CSFB and CSFB 1998-P1 agreed, among other things, to
release KGI from its obligations under the Original KGI Avenue Plaza Guaranty.
22. Pursuant to certain of the Extension Letters, the maturity date of the
Avenue Plaza Loan was extended to April 20, 2001.
23. Pursuant to the First Master Modification Agreement, (i) certain
additional amendments and modifications to the Avenue Plaza Loan were made,
including, among other amendments, extending the maturity date thereof to
February 16, 2002, cross-defaulting and cross-collateralizing the Avenue Plaza
Loan with all the other Loans (hereinafter defined), and acknowledging the
execution of the Restated Avenue Plaza Note described below; (ii) Avenue Plaza,
EFI and Equivest Louisiana ratified, reaffirmed and assumed all of the terms,
provisions, conditions, representations, covenants, warranties, responsibilities
and obligations under the Avenue Plaza Loan, as modified, and (iii) EFI and
Equivest Louisiana executed that certain Amended and Restated Guaranty Agreement
dated April 20, 2001 (the "Restated Avenue Plaza Guaranty"), amending and
restating the Original EFI Avenue Plaza Guaranty (the Original EFI Avenue Plaza
Guaranty, as amended and restated by the Restated Avenue Plaza Guaranty, shall
be referred to hereafter as the "Avenue Plaza Guaranty").
24. The Original Avenue Plaza Note was amended and restated by that certain
Amended and Restated Promissory Note dated April 20, 2001 (the "Restated Avenue
Plaza Note"), in the original principal amount of $19,000,000, made by Avenue
Plaza, payable to the order of CSFB (the Original Avenue Plaza Note, as amended
and restated by the Restated Avenue Plaza Note, shall be referred hereafter to
as the "Avenue Plaza Note").
25. As used herein, the Avenue Plaza Mortgage, the Avenue Plaza Guaranty,
the Avenue Plaza Note, and all promissory notes, guaranties, assignments,
mortgages, financing statements, exhibits and all other related documents or
instruments and all amendments or modifications to any of the above executed in
connection with the Avenue Plaza Loan shall be referred to herein collectively
as the "Avenue Plaza Loan Documents."
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 5
EXHIBIT 10.1
ST. THOMAS RESORTS, ST THOMAS, U.S. VIRGIN ISLANDS
26. CSFB, Bluebeard, Castle, KCHC, KGI, and Steven P. Kosmas ("Kosmas"), in
his individual capacity, executed that certain Loan and Security Agreement dated
as of July 30, 1998 (the "Original St. Thomas Loan Agreement") pursuant to which
CSFB agreed to make two loans to Bluebeard, Castle, KCHC, KGI and Kosmas in the
aggregate principal amount of $31,000,000 (the "Original St. Thomas Loan"), as
evidenced by (i) that certain Acquisition/Development Promissory Note dated July
30, 1998 (the "Original St. Thomas Acquisition Note"), made by Bluebeard, Castle
and KCHC to the order of CSFB in the original principal amount of $17,000,000
and (ii) that certain Receivables Promissory Note dated July 30, 1998 ("St.
Thomas Receivables Note"), made by Bluebeard, Castle and KCHC to the order of
CSFB in the original principal amount of $14,000,000 (together, the "Original
St. Thomas Notes").
27. The Original St. Thomas Loan is secured, in part, by (i) a Mortgage,
Security Agreement, and Assignment of Leases and Rents dated July 30, 1998 (the
"Original St. Thomas Mortgage"), executed by Castle and Bluebeard in favor of
CSFB and recorded on August 10, 1998, in Book 50G, at Page 127, as Document No.
3401 in the Office of the Recorder of Deeds for the Judicial District of St.
Thomas and St. John, Territory of the United States Virgin Islands and (ii) a
Collateral Assignment of Construction Contracts, a Collateral Assignment of
Architect's and Engineer's Agreements and Plans and Specifications, a Collateral
Assignment of Management Agreements, a Collateral Assignment of Certificates,
Permits, Licenses, Approvals, Bonds, and Warranties, a Collateral Assignment of
Borrowers' Rights Under the Applicable Declarations and Bylaws, a Collateral
Assignment of Trademarks, Trade Names, Service Marks, Copyrights, and Other
Intellectual Property, and various other documents and instruments, all for the
benefit of CSFB and its respective successors and assigns.
28. Pursuant to the terms and provisions of that certain
Acquisition/Development Payment Guaranty dated July 30, 1998, executed by KGI to
and in favor of CSFB ("Original KGI St. Thomas Guaranty"), and that certain
Receivables Payment Guaranty dated July 30, 1998 (the "St. Thomas Receivables
Guaranty"), executed by KGI to and in favor of CSFB, KGI absolutely and
unconditionally guaranteed and promised to pay to CSFB or its successors and
assigns, any and all principal, interest, and other amounts due CSFB or its
successors or assigns pursuant to the Original St. Thomas Notes, the Original
St. Thomas Mortgage, or any of the other documents or instruments that evidence
and/or secure the Original St. Thomas Loan, and to perform fully, completely,
and punctually all other terms, covenants, obligations, and conditions contained
therein.
29. Pursuant to that certain Loan Assignment Agreement dated as of
September 18, 1998, by and between CSFB and RFI (the "Loan Assignment
Agreement"), (i) CSFB sold, assigned, transferred, granted, and conveyed unto
RFI, absolutely and unconditionally, all of CSFB's rights, title, and interest
in and to (1) the St. Thomas Receivables Note, (2) the Receivables Component (as
such term is defined in the Original St. Thomas Loan Agreement) of the St.
Thomas Loan (excluding, specifically, however, any liens or interests in and to
the Original St. Thomas Mortgage), and (3) the St. Thomas Receivables Guaranty,
and (ii) RFI releases all of its rights and interests in the Original St. Thomas
Mortgage so that the Original St. Thomas Mortgage, as modified by the Loan
Assignment Agreement (referred to herein, as the "St. Thomas Mortgage"), secures
only the portion of the Original St. Thomas Loan evidenced by the Original St.
Thomas Acquisition Note (such portion is hereinafter referred to as the "St.
Thomas Loan").
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 6
EXHIBIT 10.1
30. Pursuant to that certain Purchase Agreement dated as of February 16,
1999, by and among EFI, KGI, KCHC, and various other parties, KCHC agreed to
sell to EFI or its designee all issued and outstanding capital stock of Castle
and Bluebeard and, in connection therewith, CSFB, RFI, EFI, Equivest St. Thomas,
Bluebeard and Castle executed that certain Loan Assumption Agreement dated as of
March 30, 1999 pursuant to which (i) CSFB consented to Equivest St. Thomas'
acquisition of all issued and outstanding capital stock of Castle and Bluebeard,
(ii) EFI, Equivest St. Thomas, Bluebeard and Castle agreed to execute a Loan
Assumption Agreement dated March 30, 1999 (the "St. Thomas Loan Assumption
Agreement"), pursuant to which EFI, Equivest St. Thomas, Bluebeard and Castle
ratified, reaffirmed and assumed all of the terms, provisions, conditions,
representations, covenants, warranties, responsibilities and obligations under
the St. Thomas Loan, (iii) EFI and Equivest St. Thomas executed a Completion
Guaranty dated as of March 30, 1999 and an Acquisition/Development Payment
Guaranty dated as of March 30, 1999, each in favor of CSFB (together, the
"Original St. Thomas Guaranty"), and (iv) KGI was released from its obligations
under the Original KGI St. Thomas Guaranty pursuant to the Mutual Release
referenced above.
31. Pursuant to the First Master Modification Agreement, (i) certain
additional amendments and modifications to the Original St. Thomas Loan were
made, including, among other amendments, extending the maturity date thereof to
February 16, 2002, cross-defaulting and cross-collateralizing the St. Thomas
Loan with all the other Loans (hereinafter defined), and acknowledging the
execution of an Restated St. Thomas Note described below; and (ii) Bluebeard,
Castle, EFI and Equivest St. Thomas ratified, reaffirmed and assumed all of the
terms, provisions, conditions, representations, covenants, warranties,
responsibilities and obligations under the St. Thomas Loan, and (iii) EFI and
Equivest St. Thomas, jointly and severally, guaranteed the St. Thomas Loan
pursuant to that certain Amended and Restated Acquisition/Development Payment
Guaranty dated April 20, 2001 (the "Restated St. Thomas Guaranty"), amending and
restating the Original St. Thomas Guaranty (the Original St. Thomas Guaranty, as
amended and restated by the Restated St. Thomas Guaranty, shall be referred to
hereafter as the "St. Thomas Guaranty").
32. The Original St. Thomas Acquisition Note was amended and restated by
that certain Amended and Restated Acquisition/Development Promissory Note dated
April 20, 2001 (the "Restated St. Thomas Note"), in the original principal
amount of $17,000,000, made by Bluebeard and Castle, payable to the order of
CSFB (the Original St. Thomas Acquisition Note, as amended and restated by the
Restated St. Thomas Note shall be referred to hereafter as the "St. Thomas
Note").
33. The Original St. Thomas Loan Agreement, as amended and modified by (i)
the Loan Assignment Agreement, (ii) the St. Thomas Loan Assumption Agreement,
(iii) the First Master Modification Agreement and (iv) any other amendments and
modifications thereto now or hereafter executed, shall be referred to herein,
collectively, as the "St. Thomas Loan Agreement."
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 7
EXHIBIT 10.1
34. As used herein, the St. Thomas Mortgage, the St. Thomas Guaranty, the
St. Thomas Note, the St. Thomas Loan Agreement and all promissory notes,
guaranties, assignments, mortgages, financing statements, exhibits and all other
related documents or instruments and all amendments or modifications to any of
the above executed in connection with the St. Thomas Loan shall be referred to
herein collectively as the "St. Thomas Loan Documents."
ACQUISITION AND DEVELOPMENT LOAN
35. CSFB, RFI and EFI executed that certain Loan and Security Agreement
dated as of November 14, 1997 (the "Original A&D Loan Agreement"), pursuant to
which CSFB agreed to make a loan to RFI in the maximum principal amount of
$30,000,000 for purposes of financing certain acquisition and development loans
originated by RFI (the "A&D Loan").
36. The A&D Loan is evidenced by that certain Promissory Note dated
November 14, 1997 (the "Original A&D Note"), made by RFI to the order of CSFB in
the original principal amount of $30,000,000, is secured by various other
documents and instruments, and is guaranteed pursuant to that certain Guaranty
dated November 14, 1997 and executed by EFI in favor of CSFB (the "Original A&D
Guaranty").
37. Pursuant to certain of the Extension Letters, the Maturity Date of the
A&D Loan was extended to April 20, 2001.
38. Pursuant to the First Master Modification Agreement, (i) certain
additional amendments and modifications to the A&D Loan were made, including,
among other amendments, extending the maturity date thereof to February 16,
2002, cross-defaulting and cross-collateralizing the A&D Loan with all of the
other Loans (hereinafter defined) and acknowledging the execution of an Restated
A&D Note described below; (ii) RFI and EFI ratified, reaffirmed and assumed all
of the terms, promises, conditions, representations, covenants, warranties,
responsibilities and obligations under the A&D Loan, and (iii) EFI executed an
Amended and Restated Guaranty dated April 20, 2001 (the "Restated A&D
Guaranty"), amending and restating the Original A&D Guaranty (the Original A&D
Guaranty, as amended and restated by the Restated A&D Guaranty, shall be
referred to hereafter as the "A&D Guaranty").
39. The Original A&D Note was amended and restated by that certain Amended
and Restated Promissory Note dated April 20, 2001 (the "Restated A&D Note") in
the original principal amount of $30,000,000, made by RFI payable to the order
of CSFB (the Original A&D Note, as amended and restated by the Restated A&D
Note, shall be referred to hereafter as the "A&D Note").
40. The Original A&D Loan Agreement, as amended and modified by (i) certain
of the Extension Letters, (ii) the First Master Modification Agreement and (iii)
any other amendments and modifications thereto now or hereafter executed shall
be referred to herein as the "A&D Loan Agreement."
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 8
EXHIBIT 10.1
41. As used herein, the A&D Guaranty, the A&D Note, and the A&D Loan
Agreement and all promissory notes, guaranties, assignments, mortgages,
financing statements, exhibits and all other related documents or instruments
and all amendments or modifications to any of the above executed in connection
with the A&D Loan shall be referred to herein collectively as the "A&D Loan
Documents." WASHINGTON, D.C. COLLATERAL
42. CSFB made a loan to EFI DC, in the maximum principal amount of
$3,000,000 (the "DC Loan"), as evidenced by that certain Promissory Note dated
June 23, 1998, made by EFI DC payable to the order of CSFB in the original
principal amount of $3,000,000 (the "DC Note"), which D.C. Note is secured in
part by a Purchase Money Deed of Trust, Assignment of Rents and Leases and
Security Agreement dated June 23, 1998 (the "DC Mortgage"), executed by EFI DC
in favor of CSFB and recorded as Instrument No. 9800049339 in the Office of the
DC Recorder of Deeds, encumbering certain real property and the improvements
thereon located at 2501 Pennsylvania Avenue, N.W., Washington, D.C. (the "DC
Property").
43. Pursuant to the First Master Modification Agreement, (i) EFI DC
acknowledged that, notwithstanding the payment in full of the DC Note, the DC
Mortgage secures (and continues to secure) each of the other Loans, and (ii) EFI
DC agreed that, upon the sale of the DC Property, EFI DC would pay to CSFB an
amount equal to $2,500,000 (the "DC Release Amount"), to be applied by CSFB to
the repayment of the Bridge Loan and the other Loans, and upon receipt by CSFB
of the DC Release Amount, CSFB would execute and deliver to EFI DC an
unconditional and complete release of the liens and security interests created
by the DC Mortgage.
44. As used herein, the DC Note, the DC Mortgage and all promissory notes,
guaranties, assignments, mortgages, financing statements, exhibits and all other
related documents or instruments and all amendments or modifications to any of
the above executed in connection with the DC Loan shall be referred to herein
collectively as the "DC Loan Documents."
RIVERSIDE SUITES, SAN ANTONIO, TEXAS
45. RFI made a loan to Equivest Texas in the maximum principal amount of
$4,500,000 (the "Riverside Loan"), as evidenced by a Promissory Note dated
August 23, 2000, made by Equivest Texas payable to the order of RFI in the
original principal amount of $4,500,000 (the "Riverside Note").
46. The Riverside Loan is secured in part by (i) a Deed of Trust and
Security Agreement dated August 31, 2000 (the "Riverside Mortgage"), executed by
Equivest Texas in favor of RFI and recorded in Bexar County, Texas, as Clerk's
File No. 2000-0144330, as assigned by RFI to CSFB pursuant to that certain
Assignment of Deed of Trust and Other Loan Documents dated April 20, 2001 (the
"Riverside Absolute Assignment"), recorded in Bexar County, Texas, as Clerk's
File No. 2001-0105851, (ii) an Assignment of Rents, Leases and Other Benefits
dated August 23, 2000 from Equivest Texas to RFI recorded in Bexar County, Texas
as Clerk's File No. 2000-0144333, (iii) an Assignment of Borrower's Rights as
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 9
EXHIBIT 10.1
Developer Under Declaration and Bylaws dated August 23, 2000 from Equivest Texas
to RFI recorded in Bexar County, Texas as Clerk's File No. 2000-014439, and (iv)
an Environmental Indemnity Agreement, an Assignment of Architectural Contract
and Plans and Specifications, an Assignment of Construction Contract, and an
Assignment and Subordination of Management Agreement, each of which is dated
August 21, 2000 and executed by Equivest Texas in favor of RFI.
47. Simultaneously with the execution of the First Master Modification
Agreement, (i) RFI assigned to CSFB all of its rights and interest in and to the
Riverside Loan, as evidenced by its delivery to CSFB of the Riverside Note
endorsed to CSFB and the Riverside Absolute Assignment, and (ii) EFI executed a
Guaranty Agreement dated April 20, 2001 (the "Riverside Guaranty"), which CSFB
and EFI intended to supercede that certain Unconditional Guarantee of Payment
and Performance dated August of 2000 by EFI in favor of CSFB.
48. As used herein, the Riverside Note, the Riverside Mortgage, the
Riverside Guaranty and all promissory notes, guaranties, assignments, mortgages,
financing statements, exhibits and all other related documents or instruments
and all amendments or modifications to any of the above executed in connection
with the Riverside Loan shall be referred to herein collectively as the
"Riverside Loan Documents."
COCONUT PALMS IV, NEW SMYRNA, FLORIDA
49. RFI made a loan to Ocean Development Group, Inc., a Florida corporation
("Ocean Development"), in the maximum principal amount of $9,000,000 (the
"Coconut Palms Loan"), as evidenced by that certain Acquisition, Development and
Construction Promissory Note dated April 15, 1998, made by Ocean Development
payable to the order of RFI in the original principal amount of $9,000,000 (the
"Coconut Palms Note"), issued in connection with the Acquisition and Development
Loan Agreement dated April 15, 1998 (the "Coconut Palms Loan Agreement")
executed by Ocean Development and RFI.
50. The Coconut Palms Note is secured in part by (i) a Mortgage, Assignment
of Rents and Leases and Security Agreement dated April 15, 1998 (the "Coconut
Palms Mortgage"), executed by Ocean Development in favor of RFI and recorded in
the Public Records of Volusia County, Florida in Book 4306, Page 3269,
Instrument No. 98 087879, as assigned by RFI to CSFB pursuant to that certain
Assignment of Mortgage and Other Loan Documents dated April 20, 2001 (the
"Coconut Palms Absolute Assignment"), recorded in the Public Records of Volusia
County, Florida in Book 4705, Page 4247, as Instrument No. 2001-131306, and (ii)
an Environmental Indemnity Agreement, an Assignment of Architectural Contract
and Plans and Specifications, and an Assignment of Construction Contract, each
of which is dated April 15, 1998 and executed by Ocean Development in favor of
RFI.
51. The Coconut Palms Loan is absolutely and unconditionally guaranteed
pursuant to (i) that certain Guaranty and Subordination Agreement dated April
15, 1998 by KGI, (ii) that certain Guaranty and Subordination Agreement dated
April 15, 1998 by Steven P. Kosmas; (iii) that certain Guaranty and
Subordination Agreement dated April 15, 1998 by Nicholas Kosmas, (iv) that
certain Guaranty and Subordination Agreement dated April 15, 1998 by Paul
Kosmas, and (v) that certain Guaranty and Subordination Agreement dated April
10, 1998 by Harold B. Gordy, Jr. (each of the documents referenced in the
preceding clauses (i), (ii), (iii), (iv) and (v) are referred to herein,
collectively, as the "Coconut Palms Guaranties").
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 10
EXHIBIT 10.1
52. Simultaneously with the execution of the First Master Modification
Agreement, (i) RFI assigned to CSFB all of its rights and interest in and to the
Coconut Palms Loan, as evidenced by its execution and delivery to CSFB of the
Coconut Palms Note endorsed to CSFB and the Coconut Palms Absolute Assignment,
and (ii) RFI assigned to CSFB all of its rights in connection with the Coconut
Palms Guaranties evidenced by that certain Assignment of Underlying Guaranties
dated April 20, 2001 among RFI and CSFB.
53. As used herein, the Coconut Palms Note, the Coconut Palms Mortgage,
Coconut Palms Guaranties and all promissory notes, guaranties, assignments,
mortgages, financing statements, exhibits and all other related documents or
instruments and all amendments or modifications to any of the above executed in
connection with the Coconut Palms Loan shall be referred to herein collectively
as the "Coconut Palms Loan Documents."
ELLINGTON AT WACHESAW, MURRELL'S INLET, SOUTH CAROLINA
54. RFI made a loan to Carmel Development, Inc. ("Carmel") in the
maximum principal amount of $2,400,000 (the "Ellington Loan"), as evidenced by
that certain Acquisition, Development and Construction Promissory Note dated
July 17, 1998, made by Carmel payable to the order of RFI in the original
principal amount of $2,400,000 (the "Ellington Note"), issued in connection with
that certain Acquisition, Development and Construction Loan Agreement dated July
17, 1998 (the "Ellington Loan Agreement") executed by Carmel and RFI.
55. The Ellington Note is secured in part by (i) a Mortgage, Assignment
of Rents and Leases and Security Agreement dated July 28, 1998 (the "Ellington
Mortgage"), executed by Carmel in favor of RFI and recorded in Georgetown
County, South Carolina, in the Georgetown County Records Mortgage Book 1092,
Page 74, as assigned by RFI to CSFB pursuant to that certain Assignment of
Mortgage and Other Loan Documents dated April 20, 2001 (the "Ellington Absolute
Assignment"), recorded in Georgetown County, South Carolina, in Georgetown
County Records Book 1546, Page 305, on July 26, 2001, and (ii) an Environmental
Indemnity Agreement, an Assignment of Architectural Contract and Plans and
Specifications, and an Assignment of Construction Contract, each of which is
dated July 17, 1998 and executed by Carmel in favor of RFI.
56. The Ellington Loan, is absolutely and unconditionally guaranteed
pursuant to that certain Guaranty and Subordination Agreement dated July 17,
1998 (the "Ellington Guaranty") executed by Glenn's Bay, Inc. ("Glenn's Bay").
57. Simultaneously with the execution of the First Master Modification
Agreement, (i) RFI assigned to CSFB all of its rights and interest in and to the
Ellington Loan, as evidenced by its execution and delivery to CSFB of the
Ellington Note endorsed to CSFB and the Ellington Absolute Assignment, and (ii)
RFI assigned to CSFB all of its rights in connection with the Ellington Guaranty
evidenced by that certain Assignment of Underlying Guaranty dated April 20, 2001
among RFI and CSFB.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 11
EXHIBIT 10.1
58. As used herein, the Ellington Note, the Ellington Mortgage, the
Ellington Guaranty and all promissory notes, guaranties, assignments, mortgages,
financing statements, exhibits and all other related documents or instruments
and all amendments or modifications to any of the above executed in connection
with the Ellington Loan shall be referred to herein collectively as the
"Ellington Loan Documents."
ACQUISITION AND AMENDMENT OF LOANS
59. Pursuant to that certain Loan Sale Agreement dated as of August 29,
2001 (the "Loan Sale Agreement"), by and between CSFB and CapitalSource, and as
evidenced by all of the assignments, assumptions and other documents and
instruments executed in connection therewith, CSFB specifically assigned to
CapitalSource all of its right, title and interest in and to (i) the Bridge
Loan, Ocean City Loan, Avenue Plaza Loan, St. Thomas Loan, the DC Loan, the A&D
Loan, and the Riverside Loan (individually, a "Loan" and collectively, the
"Loans"), and all of the Loan Documents (hereinafter defined) and (ii) the
Coconut Palms Loan and the Ellington Loan and all of the Trust Loan Documents
(as hereinafter defined).
60. Pursuant to that certain Loan Sale Agreement dated as of August 29,
2001, by and between CapitalSource and CS Resorts - 2001 Trust, a Delaware
business trust, and as evidenced by all of the assignments, assumptions and
other documents and instruments executed in connection therewith, CapitalSource
specifically assigned to CS Resorts - 2001 Trust, a Delaware business trust, all
of its right, title and interest in and to the Ellington Loan and the Coconut
Palms Loan (the Ellington Loan and the Coconut Palms Loan shall individually be
referred to as a "Trust Loan" and, together, as the "Trust Loans" and the
Ellington Loan Documents and the Coconut Palms Loan Documents shall be referred
to herein, collectively, as the "Trust Loan Documents").
61. Borrowers, Guarantors and CapitalSource desire to (i) terminate the
A&D Loan, (ii) extend the maturity date of each Loan (other than the A&D Loan),
and (iii) amend the terms, provisions, and conditions of certain of the Bridge
Loan Documents, the Ocean City Loan Documents, the Avenue Plaza Loan Documents,
the St. Thomas Loan Documents, the DC Loan Documents, and the Riverside Loan
Documents (the Bridge Loan Documents, the Ocean City Loan Documents, the Avenue
Plaza Loan Documents, the St. Thomas Loan Documents, the A&D Loan Documents, the
DC Loan Documents, and the Riverside Loan Documents, together with any and all
promissory notes, guaranties, assignments, mortgages, financing statements,
exhibits and all other related documents or instruments and all amendments or
modifications to any of the above executed in connection therewith shall be
referred to herein collectively as the "Loan Documents," and references herein
to "Loan Documents" shall mean the relevant Loan Documents for each Loan).
NOW, THEREFORE, for and in consideration of the premises and mutual
covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 12
EXHIBIT 10.1
SECTION 1: GENERAL
1.1 Incorporation of Recitals. CapitalSource, Borrowers and Guarantors
hereby confirm the facts set forth in each of the foregoing Recitals and agree
that such Recitals shall be deemed incorporated into, and considered a material
part of, this Second Master Modification Agreement.
1.2 Definitions. Except as otherwise provided herein to the contrary or
unless the context otherwise requires, all capitalized terms used in this Second
Master Modification Agreement shall have the meanings ascribed to them in the
Loan Documents; provided, however, as used herein, the following terms shall
have the meanings set forth below:
"Additional Loan" or "Additional Loans" is defined in Section 1.3
hereof.
"Adjusted Aggregate Loan Amount" means, as of any date, the Aggregate
Loan Amount on such date, less the outstanding principal balance of the Avenue
Plaza Loan and the Bridge Loan on such date.
"Aggregate Loan Amount" shall mean, as of any date, the sum of the
aggregate principal balances of the Loans outstanding on such date. The
Aggregate Loan Amount as of the Determination Date is $35,094,110.27.
"Applicable Declaration" shall mean, with respect to a particular
Resort, any declaration of condominium, declaration of covenants, conditions and
restrictions, master deed, and/or similar document, together with any
amendments, supplements, or restatements thereof, that establishes the
underlying form of condominium and/or interval ownership of such Resort and is
recorded in the applicable office of public records.
"Applicable Principal Balance" shall mean, with respect to each Loan as
of any date of calculation, the Initial Discounted Principal Amount of each Loan
set forth on Exhibit "N" attached hereto, reduced by the amount of all principal
payments made to CapitalSource for such Loan prior to such date of calculation.
"Capital Lease" shall mean, as to any Person, a lease of any interest
in any kind of property or asset, whether real, personal or mixed or tangible or
intangible, by that Person as lessee that is, should be or should have been
recorded as a "capital lease" on the balance sheet of that Person in accordance
with GAAP.
"Capitalized Lease Obligations" shall mean all obligations of any
Person under Capital Leases, in each case taken at the amount thereof accounted
for as liabilities in accordance with GAAP.
"Collateral" shall mean, collectively, all real and personal property
of Borrowers encumbered by liens and security interests granted to
CapitalSource, or its predecessor in interest, pursuant to the Loan Documents.
"Commitment Fee" is defined in Section 9.1 hereof.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 13
EXHIBIT 10.1
"Custodial Agreement" shall mean a Custodial Agreement by and between
CapitalSource and Custodian, and consented to in writing by Borrowers, in form
and substance acceptable to CapitalSource, pursuant to which Custodian will
maintain custody of all original Loan Documents and take certain actions in
connection therewith.
"Custodian" shall mean collectively, Bankers Trust Company of
California, N.A., and US Bank Trust, National Association, or such other person
or entity as CapitalSource, in its sole discretion, engages from time to time,
at Borrowers' sole cost and expense, jointly and severally, to maintain custody
of all original Loan Documents and take certain actions in connection therewith.
"Debtor Relief Law" shall mean any applicable liquidation, conservatorship,
receivership, bankruptcy, moratorium, rearrangement, insolvency, reorganization,
or similar law, proceeding, or device providing for the relief of debtors from
time to time in effect and generally affecting the rights of creditors.
"Debt" of any Person shall mean, without duplication, (a) all
indebtedness for money borrowed and indebtedness represented by notes payable
and drafts accepted representing extensions of credit, (b) obligations evidenced
by bonds, debentures, notes or other similar instruments, including, without
limitation, indebtedness represented by notes payable, drafts accepted, bonds,
debentures, or other similar instruments, (c) indebtedness upon which interest
charges are or are customarily paid, (d) Capitalized Lease Obligations, (e) the
face amount of all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder, (f) indebtedness issued or
assumed as full or partial payment for property or services (other than trade
payables, deferred revenue, taxes or accrued expenses, in each case arising in
the ordinary course of business but only if and so long as such accounts are
payable on customary trade terms), (g) the deferred purchase price of assets or
services which in accordance with GAAP would be shown on the liability side of
the balance sheet of such Person, and (h) guaranties of any of the foregoing.
"Debt Service Coverage Ratio" shall mean the ratio of (a) total EBITDA
of Borrowers, to (b) total Interest Expense of Borrowers, each determined in
accordance with GAAP and on a consolidated basis for the four calendar quarters
immediately preceding the date of calculation by CapitalSource hereunder (taken
as one accounting period).
"Determination Date" means August 23, 2001.
"DG Facility" means that certain timeshares receivables warehouse
facility loan from Autobahn Funding Company, LLC to EFI Funding Company, Inc.
and/or its subsidiaries.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 14
EXHIBIT 10.1
"EBITDA" shall mean, for any period, the sum, without duplication, of
the following for any Person, each calculated for such period: Net Income
determined in accordance with GAAP, plus the sum of (a) Interest Expense, (b)
taxes on income, whether paid, payable or accrued, (c) depreciation expense, (d)
amortization expense, (e) all other non-cash, non-recurring charges and
expenses, excluding accruals for cash expenses made in the ordinary course of
business, and (f) gain or loss from any sale of assets, other than sales in the
ordinary course of business, all of the foregoing determined in accordance with
GAAP.
"Exit Fee" shall mean, with respect to each Loan, the amount shown on
Exhibit "N" attached hereto (discounted portion of Loans not to accrue
interest), together with the interest payable thereon as set forth on Exhibit
"N".
"GAAP" shall mean generally accepted accounting principles, applied on
a consistent basis, as described in Opinions of the Accounting Principles Board
of the American Institute of Certified Public Accountants and/or in statements
of the Financial Accounting Standards Board which are applicable under the
circumstances as of the date in question.
"Initial Discounted Principal Amount" is defined on Exhibit "N"
attached hereto.
"Interval Release Fee" shall mean, with respect to the sale of any
Interval, the release fee which is or might otherwise be payable to
CapitalSource under the Loan Documents.
"Interval" shall mean an undivided fee simple timeshare interest in a
particular Unit within a Resort, whether denominated as a "unit week," a
"condominium interval unit," an "interval share," an
"interval share ownership interest," or otherwise, as a tenant in
common with other owners of undivided interests in such Unit, together with all
rights, benefits, privileges, and interests appurtenant thereto, including the
right to use and occupy a Unit within such Resort and all common areas
appurtenant to such Unit and/or Resort during a reserved or assigned "unit week"
or other use period, all as more specifically described in the Applicable
Declaration or other timeshare documents related thereto.
"Interest Expense" shall mean, for any period, total interest expense
(including that attributable to Capital Leases in accordance with GAAP) of any
Person, with respect to all outstanding Debt of such Person including, without
limitation, all capitalized interest, but excluding all non-cash interest,
commissions, discounts and other fees and charges owed with respect to letters
of credit and bankers' acceptance financing.
"Leverage Ratio" shall mean, at any date of determination, for any
Person the ratio of (a) the total Debt of such Person on such date, to (b)
Tangible Net Worth of such Person on such date.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 15
EXHIBIT 10.1
"Lien" shall mean any mortgage, security interest, encumbrance, or
other interest in property securing an obligation owed to, or valid claim by, a
Person other than the owner of such property, whether such interest arises in
equity or is based on common law, statute , or contract.
"Liquid Assets" shall mean (i) total assets of any Person that are
cash, cash equivalents, accounts, Marketable Securities, U.S. Treasury bonds,
and other highly liquid investments that are not pledged, hypothecated, subject
to rights of offset, or otherwise restricted, and (ii) the amount of funds
available to be advanced to EFI or its subsidiaries under the DG Facility.
"Marketable Securities" shall mean and refer to registered securities
which are traded in the NASDAQ or New York Stock Exchange markets.
"Material Adverse Effect" shall mean the occurrence of any event or
circumstance which CapitalSource determines could have a material adverse effect
on (a) the condition, operations, assets, business or prospects of any Borrower
or Guarantor, (b) any Borrower's or Guarantor's ability to pay the Loans or
perform the obligations in accordance with the terms of the Loan Documents, (c)
the value of the Collateral, or CapitalSource's liens on the Collateral for the
Loans or the priority of any such lien or security interest, or (d) the
practical realization of the benefits of CapitalSource's rights and remedies
under the Loan Documents.
"Mortgaged Real Property" shall mean all of a Borrower's now owned or
hereafter acquired right, title and interest in and to any real property, unit,
interval, condominium unit, common area, or other real and personal property of
any and every type, together with all easements, rights-of-way, and other
appurtenances thereto, that is encumbered by the Lien of any mortgage executed
by a Borrower in favor of CapitalSource.
"Net Income" means, for any period, the net earnings (or the net
deficit, if expenses and charges exceed revenues and other property income
credits) of any Person for such period, after provisions for cash tax
distributions and after extraordinary items, determined in accordance with GAAP.
"Net Worth" shall mean the excess of total assets of any Person,
determined in accordance with GAAP less all assets of such Person which reflect
obligations or amounts due or payable to such Person from any affiliate of such
Person, over total liabilities of such Person without taking into account any
payables or receivables due among such Person and any Borrowers, determined in
accordance with GAAP.
"Payment Default" is defined in Section 9.8 hereof.
"Person" shall mean an individual, a partnership, a corporation, a
limited liability company, a business trust, a joint stock company,
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 16
EXHIBIT 10.1
a trust, an unincorporated association, a joint venture, a governmental
authority or any other entity of whatever nature.
"Resort" shall mean collectively all improved and unimproved real and
personal property that comprises or is located at any condominium or horizontal
property regime that exists or may in the future exist, which is security for
any Loan, as such real and personal property is more particularly described in
the Ocean City Mortgage, the Riverside Mortgage, the Avenue Plaza Mortgage, the
St. Thomas Mortgage, an Inventory Mortgage or Construction Mortgage (as such
terms are described in the Bridge Loan Agreement), and any other mortgage
granted for the benefit of CapitalSource as security for all or any portion of
the Loans.
"Second Master Modification Closing Date" shall mean the date of this
Second Master Modification Agreement.
"Solvent" means, with respect to any Person, that the fair value of the
assets of such Person (both at fair valuation and at present fair saleable
value) is, on the date of determination, greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person
as of such date and that, as of such date, such Person is able to pay all
liabilities of such Person as such liabilities mature and such Person does not
have unreasonably small capital with which to carry on its business. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability discounted to present value
at rates believed to be reasonable by such Person.
"Tangible Assets" shall mean, as of any date and for any Person, the
total assets of such Person, determined in accordance with GAAP, less all assets
of such Person which would be classified as non-identifiable intangible assets
under GAAP (including, without limitation, (i) good will, and (ii) all assets of
such Person which reflect obligations or amounts due or payable to such Person).
"Tangible Net Worth" shall mean, as of any date and for any Person, the
excess of the Tangible Assets of any Person, determined in accordance with GAAP,
over total liabilities of such Person, determined in accordance with GAAP.
"Unit" shall mean a residential condominium, apartment, or hotel unit
at a Resort designated for timeshare use in the Applicable Declaration or other
timeshare documents related thereto, whether denominated as a "villa unit," a
"condominium villa unit," or otherwise, together with all common areas,
easements and other appurtenances thereto.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 17
EXHIBIT 10.1
1.3 Additional Loans. Attached hereto as Exhibit "A" is a listing of
all loans made by third party lenders to one or more of Borrowers having an
outstanding principal balance in excess of $250,000, as of the Second Master
Modification Closing Date, which is incorporated herein by this reference
(individually, the "Additional Loan" and collectively, the "Additional Loans").
SECTION 2: BRIDGE LOAN
2.1 Borrower and Lender. As of the date hereof, the term "Borrower"
when used with respect to the Bridge Loan or the Bridge Loan Documents shall
mean, collectively, the Company, ERC, RFI and EFI and the term "Lender" shall
mean CapitalSource, regardless of how "Borrower" and "Lender" may previously
have been defined in any of the Bridge Loan Documents executed prior to the date
hereof.
2.2 Maturity Date. The definition of Maturity Date in Section 1.56 of
the Bridge Loan Agreement is hereby deleted in its entirety and the following is
hereby substituted therefor:
"1.56 Maturity Date. The Loan shall mature and be payable in full on
August 31, 2004 ("Maturity Date") as long as no Default or Event of Default
exists under any loan document or security agreement with respect to any of
the Loans (as such term is defined in the Second Master Loan Modification
Agreement dated September 7, 2001 [the "Second Master Modification
Agreement"] by and between CapitalSource Finance LLC, Borrower and certain
other parties)."
2.3 Note. The Bridge Loan Note is hereby amended as follows:
(a) Principal and Interest. Section II of the Bridge Loan Note is
hereby deleted in its entirety and the following substituted therefor:
"II. Principal and Interest. Provided that no Event of Default exists,
interest shall accrue on the Applicable Principal Balance (as defined in
the Second Master Modification Agreement defined in Section III B hereof)
of this Note from time to time outstanding, and Makers shall pay interest
thereon, at a fluctuating rate per annum (on the basis of the actual number
of days elapsed over a year of 360 days) equal to the greater of (i) the
Prime Rate plus two percent (2.00%), or (ii) ten percent (10%). The
Interest Rate charged for each one (1) month period during the term of the
Loan shall be fixed based upon the Prime Rate published or otherwise
determined prior to and in effect as of the third (3rd) Business Day
following the tenth (10th) day of each calendar month. For purposes of this
Note, "Prime Rate" shall mean the prime commercial lending rate as
announced from time to time by Citibank, N.A. or its successor at its
principal office in New York, New York or such other office as shall be
reasonably acceptable to Holder (it being understood that said prime
commercial lending rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to SECOND MASTER LOAN
MODIFICATION AGREEMENT -- Page 18
EXHIBIT 10.1
any customer), each change in said rates to be effective as of the date of
such change."
(b) Maturity Date. Section III B of the Bridge Loan Note is hereby deleted
in its entirety and the following substituted therefor: "B. Maturity Date.
The entire outstanding principal balance of this Note, together with all
accrued but unpaid interest thereon and any fees, charges, and other
amounts owed by Makers to Holder, pursuant to any of the Loan Documents,
shall be payable to Holder on or before August 31, 2004 ("Maturity Date")
as long as no Default or Event of Default exists under any loan document or
security agreement with respect to any of the Loans (as such term is
defined in the Second Master Loan Modification dated September 7, 2001 [the
"Second Master Modification Agreement"] by and between CapitalSource
Finance LLC, Makers and the other parties thereto)."
2.4 Base Rate; Interest Rate. The definition of Base Rate in Section
1.16 of the Bridge Loan Agreement is hereby deleted in its entirety. The
definition of Interest Rate in Section 1.46 of the Bridge Loan Agreement is
hereby deleted in its entirety and the following substituted therefor:
"1.46 Interest Rate. On any given date, a fluctuating rate per annum
(on the basis of the actual number of days elapsed over a year of 360 days)
equal to the greater of (i) the Prime Rate plus two percent (2.00%), or
(ii) ten percent (10%). The Interest Rate charged for each one (1) month
period during the term of the Loan shall be fixed based upon the Prime Rate
published or otherwise determined prior to and in effect as of the third
(3rd) Business Day following the tenth (10th) day of each calendar month."
2.5 Prime Rate. The definition of Prime Rate in Section 1.69 of the
Bridge Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"1.69 Prime Rate. The prime commercial lending rate as announced from
time to time by Citibank, N.A. or its successor at its principal office in
New York, New York, or such other office as shall be reasonably acceptable
to Lender (it being understood that said prime commercial lending rate is a
reference rate and does not necessarily represent the lowest or best rate
being charged to any customer), each change in said rates to be effective
as of the date of such change."
2.6 Prepayment of the Bridge Loan. The Bridge Loan may be prepaid in
whole or in part without premium or penalty for an amount equal to the
Applicable Principal Balance of the Bridge Loan on the date of prepayment. Upon
payment in full of the Bridge Loan, CapitalSource shall execute and deliver to
Borrowers such documents and instruments as may necessary to release and
terminate the security interests, liens, mortgages, or other encumbrances
related to the Bridge Loan, all of which shall be in form sufficient for filing
and recording with all applicable filing and recording offices.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 19
EXHIBIT 10.1
2.7 Reporting Requirements. Section 6.1(g) of the Bridge Loan Agreement
is hereby deleted in its entirety; it being the intent of the parties hereto
that the provisions of Section 9.13 hereof shall hereafter supercede said
Section 6.1.
SECTION 3: OCEAN CITY LOAN
3.1 Borrower, Guarantor and Lender. As of the date hereof, the term
"Borrower" when used with respect to the Ocean City Loan or the Ocean City Loan
Documents shall mean Coconut Malorie, the term "Guarantors" shall mean EFI and
Equivest Maryland, collectively, and the term "Lender," "Holder" and "RFI" shall
mean CapitalSource, regardless of how "Borrower," "Guarantor," "Lender,"
"Holder" and "RFI" may previously have been defined in any of the Ocean City
Loan Documents executed prior to the date hereof.
3.2 Amendment to Ocean City Mortgage. As of the date hereof and in
consideration of CapitalSource entering into this Second Master Modification
Agreement, Borrower has executed, and Guarantors hereby consent to the execution
of, that certain Amendment to Mortgage and Security Agreement and UCC-1
Financing Statement, acknowledging the extension of the maturity date of the
Ocean City Loan as set forth in Section 3.3 hereof, and acknowledging the
cross-collateralization of the Ocean City Loan with the other Loans as set forth
in the First Master Modification Agreement and as set forth in Section 9.6 of
this Second Master Modification Agreement.
3.3 Maturity Date. Section III B of the Ocean City Note is hereby
deleted in its entirety and the following substituted therefor:
"B. Maturity Date. The entire outstanding principal balance of this
Note, together with all accrued but unpaid interest thereon and any fees,
charges, and other amounts owed by Maker to Holder, pursuant to any of the
Loan Documents, shall be payable to Holder on or before August 31, 2004
("Maturity Date") as long as no Default or Event of Default exists under
any loan document or security agreement with respect to any of the Loans
(as such term is defined in the Second Master Loan Modification dated
September 7, 2001 [the "Second Master Modification Agreement"] by and
between CapitalSource Finance LLC, Maker, Equivest Finance, Inc., Equivest
Maryland, Inc., and the other parties thereto)."
3.4 Principal and Interest. Section II of the Ocean City Note is hereby
deleted in its entirety and the following substituted therefor:
"II. Principal and Interest. Provided that no Event of Default exists,
interest shall accrue on the Applicable Principal Balance (as defined in
the Second Master Modification Agreement defined in Section III B hereof)
of this Note from time to time outstanding, and Maker shall pay interest
thereon, at a fluctuating rate per annum (on the basis of the actual number
of days elapsed over a year of 360 days) equal to the greater of (i) the
Prime Rate plus two percent (2.00%), or (ii) ten percent (10%). The
Interest Rate charged for each one (1) month period during the term of the
Loan shall be fixed based upon the Prime Rate published or otherwise
determined prior to and in effect as of the third (3rd) Business Day
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 20
EXHIBIT 10.1
following the tenth (10th) day of each calendar month. For purposes of this
Note, "Prime Rate" shall mean the prime commercial lending rate as
announced from time to time by Citibank, N.A. or its successor at its
principal office in New York, New York, or such other office as shall be
reasonably acceptable to Holder (it being understood that said prime
commercial lending rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer), each
change in said rates to be effective as of the date of such change."
3.5 Interval Release Fees. Section III C of the Ocean City Note is
hereby deleted in its entirety and the following substituted therefor:
"C. Interval Release Fees.
(i) Maker shall pay Holder, via wire transfer, an amount equal to (i)
$2,000 per annual Interval Unit sold in the Project, and (ii) $1,000 per
biennial Interval Unit Sold in the Project. Such Interval Release Fees
shall be paid by Maker to Holder on a weekly or biweekly basis after the
consummation of the closing of the sale of each Interval Unit and applied
by Holder to reduce the outstanding principal balance of this Note. Holder
will not be obligated to deliver to Maker any partial release of lien
relating to any Interval Unit sold until (i) Holder has received the
Interval Release Fees applicable to the sale of such Interval Unit and (ii)
all other conditions set forth in Section 29 of the Mortgage have been
satisfied.
(ii) Notwithstanding the foregoing or any other term or provision of
this Note to the contrary, Maker shall be required to pay Holder an amount
(the "Deficiency Payment") equal to the difference between (i) $550,000 and
(ii) the sum of all Interval Release Fees paid by Maker pursuant to
subparagraph (i) above during the preceding twelve (12) calendar month
period ending on August 31st, which Deficiency Payments shall be paid by
Maker to Holder commencing on August 31, 2002, and continuing on each
subsequent August 31 during the term of this Note until August 31, 2004,
whereupon the entire principal balance hereof, together with all accrued
but unpaid interest thereon and any fees, charges and other amounts owed by
Maker to Holder hereunder, shall be payable to Holder in full; it being the
intent of the parties hereto that notwithstanding the number of Interval
Units sold during such twelve (12) month period, Maker shall make principal
payments to Holder for such twelve (12) month period in the aggregate of at
least $550,000. Notwithstanding anything set forth above to the contrary,
in the event that the Interval Release Fees paid to Holder during any
twelve (12) month period exceed the minimum amount required during such
period, then the excess amount shall be applied by Holder to reduce the
minimum amount due for the immediately following twelve month period. Upon
receipt by Holder of any Deficiency Payment in accordance with the
foregoing, Holder shall execute and deliver to Maker a partial release of
lien with respect to a certain number of Interval Units equal to the amount
of the Deficiency Payment divided by the Interval Release Fee applicable to
such Interval Units; provided, however, that Holder shall determine, in its
sole discretion, the Interval Units to be released.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 21
EXHIBIT 10.1
(iii) Maker acknowledges that the Mortgage does and continues to
secure the other Pool Loans (as such term is defined by the Second Master
Modification Agreement) in accordance with Section 9.6 of the Second Master
Modification Agreement. Subject to the provisions of Section 9.6 of the
Second Master Modification Agreement, Maker agrees that upon payment in
full of the loan evidenced by this Note, Holder shall have no obligation
discharge this Note or to deliver to Maker any partial release of lien
relating to any Interval Unit subsequently sold unless and until Holder has
received the Interval Release Fees applicable to the sale of an Interval
Unit. Upon receipt by Holder of such Interval Release Fees for each
Interval Unit sold, Holder shall deliver to Maker a partial release of lien
pertaining to such Interval Unit and Holder shall apply the Interval
Release Fees received by Holder to the repayment of the Pool Loans in such
order and manner as Holder may require."
3.6 Prepayment. Section IV of the Ocean City Note is hereby deleted in
its entirety and the following substituted therefor:
"IV Prepayment. Maker may prepay this Note, in whole or in part, at
any time upon fifteen (15) days' prior written notice to Holder, upon the
payment of an amount equal to the product of (A) the Applicable Prepayment
Premium Percentage (hereinafter defined) multiplied by (B) the amount of
such prepayment; provided, however, that no such prepayment premium shall
be due and payable to Holder (1) in connection with prepayments that occur
through (i) scheduled amortization payments to Holder required under the
Second Master Modification Agreement described in Section III B hereof, and
(ii) the sale of each Interval Unit or any Deficiency Payment required to
be paid to Holder, and (2) with respect to any portion of the Loan in
excess of the Initial Discounted Principal Amount of the Loan (as defined
in the Second Master Modification Agreement). As used herein, the term
"Applicable Prepayment Premium Percentage" shall mean (a) in the event all
or any portion of this Note is prepaid at any time on or before August 31,
2002, two percent (2%), and (b) in the event all or any portion of this
Note is prepaid at any time after August 31, 2002 to and including February
28, 2003, one percent (1%)."
3.7 Mortgage. The definition of Mortgage in Section 1.18 of the Ocean
City Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"1.18 "Mortgage" means the Mortgage and Security Agreement and UCC-1
Financing Statement dated October 24, 1997, as amended by that certain
Amendment to Mortgage and Security Agreement and UCC-1 Financing Statement
dated September 7, 2001, securing the payment of the Note and the payment
and performance of all obligations specified in the Mortgage and this Loan
Agreement, and evidencing a valid and enforceable lien, superior in
position to any and all other mortgages and/or liens thereon, and direct
assignment of, the Property."
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 22
EXHIBIT 10.1
3.8 Note. The definition of Note in Section 1.19 of the Ocean City Loan
Agreement is hereby deleted in its entirety and the following substituted
therefor:
"1.19 "Note" means the Amended and Restated Acquisition and
Development Promissory Note from OCCM to Credit Suisse First Boston
Mortgage Capital LLC ("CSFB"), and any successor or holder thereof, dated
April 20, 2001 in the original principal amount of $4,521,150, evidencing
the Loan."
3.9 Reporting Requirements. Section 5.21 of the Ocean City Loan
Agreement is hereby deleted in its entirety, it being the intent of the parties
that the provisions of Section 9.13 hereof shall hereafter supercede said
Section 5.21.
3.10 Lender. The first paragraph of the Ocean City Loan Agreement is
amended to delete the reference to "Resort Funding, Inc., a Delaware corporation
("RFI")," and replace it with "CapitalSource Finance LLC, a Delaware limited
liability company ("Lender")." All references to "RFI" in the Ocean City Loan
Agreement are hereby amended to read "Lender."
3.11 Indebtedness. The Ocean City Loan Agreement is hereby amended to
add thereto the following:
"5.27 Indebtedness. OCCM shall not create, incur, assume, or in any
manner become liable in respect to any Indebtedness in excess of $250,000
in the aggregate outstanding at any time except for: (i) Indebtedness to
Lender; (ii) Indebtedness evidenced by the Additional Loans (as defined in
that certain Second Master Modification Agreement dated September 7, 2001
by and between OCCM, Lender and the other entities party thereto); and
(iii) Indebtedness related to trade debt from customer receivables arising
in the ordinary sale of inventory. For purposes of this Section 5.27, the
term "Indebtedness" shall mean and refer to (a) all obligations for
borrowed money, (b) all obligations evidenced by bonds, debentures, notes
or similar instruments, (c) all obligations under conditional sale or other
title retention agreements relating to property or assets purchased by
OCCM, and (d) all obligations issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business such as, insurance
premiums, capital expenditures made in connection with repairs or
renovation to any improvements constituting part of the collateral for the
Loan, real property taxes and utility expenses)."
3.12 Mortgage. The definition of Mortgage in Section I of the Ocean
City Note is hereby deleted in its entirety and the following substituted
therefor:
"...(i) that certain Mortgage and Security Agreement and UCC-1
Financing Statement, dated October 24, 1997, executed by Maker in favor of
Resort Funding, Inc. ("RFI"), recorded in Liber 2445, at Folio 574 of the
Land Records of Worcester County, Maryland, and assigned to Credit Suisse
First Boston Mortgage Capital LLC ("CSFB") pursuant to that certain
Assignment of Mortgage and Other Loan
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 23
EXHIBIT 10.1
Documents dated as of March 26, 1999 by RFI to and in favor of CSFB,
and assigned to Holder pursuant to that certain Assignment of Mortgage
dated as of August 29, 2001 by CSFB to and in favor of Holder, as
amended by that certain Amendment to Mortgage and Security Agreement
and UCC-1 Financing Statement, dated September 7, 2001, executed by
Maker in favor of Holder (hereinafter collectively, and as the same
may be amended from time to time, the "Mortgage"); ..."
SECTION 4: RIVERSIDE LOAN
4.1 Borrower, Guarantor and Lender. As of the date hereof, the term
"Borrower" when used with respect to the Riverside Loan or the Riverside Loan
Documents shall mean Equivest Texas, the term "Guarantor" shall mean EFI, and
the term "Lender" shall mean CapitalSource, regardless of how "Borrower,"
"Guarantor" and "Lender" may previously have been defined in any of the
Riverside Loan Documents executed prior to the date hereof.
4.2 Amendment to Deed of Trust. As of the date hereof and in
consideration of CapitalSource entering into this Second Master Modification
Agreement, Borrower has executed, and Guarantors hereby consent to the execution
of, that certain Amendment to Deed of Trust and Security Agreement,
acknowledging the extension of the maturity date of the Riverside Loan as set
forth in Section 4.6 hereof, and acknowledging the cross-collateralization of
the Riverside Loan with the other Loans as set forth in the First Master
Modification Agreement and as set forth in Section 9.6 of this Second Master
Modification Agreement.
4.3 Principal and Interest. Section 2(a) of the Riverside Note is
hereby deleted in its entirety and the following substituted therefor: "2(a)
Principal and Interest. As long as no Event of Default exists, interest shall
accrue on the Applicable Principal Balance (as defined in the Second Master
Modification Agreement dated September 7, 2001 [the "Second Master Modification
Agreement"] by and between CapitalSource Finance LLC, Borrower, Equivest
Finance, Inc., and the other parties thereto) of this Note from time to time
outstanding and Borrower shall pay interest thereon at a rate (the "Interest
Rate") equal to a floating rate per annum equal to the greater of (i) the prime
commercial lending rate as announced from time to time by Citibank, N.A. or its
successor, at its principal office in New York, New York, or such other office
as shall be reasonably acceptable to Lender (it being understood that said prime
commercial lending rate is a reference rate and does not necessarily represent
the lowest or best rate being charged to any customer) (the "Prime Rate"), plus
two percent (2%), or (ii) ten percent (10%). The Interest Rate for each calendar
month shall be fixed based upon the Prime Rate published or otherwise determined
prior to and in effect as of the third (3rd) business day following the tenth
(10th) day of each calendar month. Interest shall accrue daily on the basis of a
three hundred sixty (360) day year and charged for the actual number of days
elapsed."
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 24
EXHIBIT 10.1
4.4 Interest Payments. Section 3(a) of the Riverside Note is hereby
amended to delete in its entirety the first sentence of Section 3(a) regarding
"Lender's" requirement to send monthly interest invoices.
4.5 Principal Payments. Section 7(a) of the Riverside Mortgage is
hereby deleted in its entirety. Sections 3(b) and (c) of the Riverside Note are
hereby deleted in their entirety and the following substituted therefor:
"3(b) Principal Payments. Borrower shall make mandatory principal
payments to Lender, to be paid on the sale of each and every Interval
(individually, a "Interval Release Fee" and, collectively, "Interval
Release Fees") without regard to whether such sale be by direct cash
payment to Borrower, or by financed installment purchase. Borrower shall
pay to Lender (i) for each annual Interval sold, an Interval Release Fee of
$2,317.50, and (ii) for each biennial Interval sold, an Interval Release
Fee of $1,158.75. Interval Release Fees will be paid by Borrower to Lender
on a weekly or biweekly basis after the consummation of the closing of the
sale of each Interval and will be applied by Lender to reduce the
outstanding principal balance of this Note. Lender will not be obligated to
deliver to Borrower any partial release of lien relating to any Interval
sold until (i) Lender has received the Interval Release Fee applicable to
the sale of such Interval and (ii) all other conditions to such release set
forth in Section 7(b) and (c) of the Deed of Trust have been satisfied.
(c) Notwithstanding the foregoing or any other term or provision of
this Note to the contrary, Borrower shall be required to pay Lender an
amount (the "Deficiency Payment") equal to the difference between (i)
$927,000 and (ii) the sum of all Interval Release Fees paid by Borrower
pursuant to subparagraph (b) above during the preceding twelve (12)
calendar month period ending on August 31st, which Deficiency Payments
shall be paid by Borrower to Lender commencing on August 31, 2002, and
continuing on each subsequent August 31 during the term of this Note until
August 31, 2004, whereupon the entire principal balance hereof, together
with all accrued but unpaid interest thereon and any fees, charges and
other amounts owed by Borrower to Lender hereunder, shall be payable to
Lender in full; it being the intent of the parties hereto that
notwithstanding the number of Intervals sold during such twelve (12) month
period, Borrower shall make principal payments to Lender for such twelve
(12) month period in the aggregate of at least $927,000. Notwithstanding
anything set forth above to the contrary, in the event that the Interval
Release Fees paid to Lender during any twelve (12) month period exceed the
minimum amount required during such period, then the excess amount shall be
applied by Lender to reduce the minimum amount due for the immediately
following twelve month period. Upon receipt by Lender of any Deficiency
Payment in accordance with the foregoing, Lender shall execute and deliver
to Borrower a partial release of lien with respect to a certain number of
Intervals equal to the amount of the Deficiency Payment divided by the
Interval Release Fee applicable to such Intervals; provided, however, that
Lender shall determine, in its sole discretion, the SECOND MASTER LOAN
MODIFICATION AGREEMENT -- Page 25
EXHIBIT 10.1
Intervals to be released. Borrower acknowledges that the Deed of Trust does
and continues to secure the other Pool Loans in accordance with Section 9.6
of the Second Master Modification Agreement. Subject to the provisions of
Section 9.6 of the Second Master Modification Agreement, Borrower agrees
that upon payment in full of the loan evidenced by this Note, Lender shall
have no obligation discharge this Note or to deliver to Borrower any
partial release of lien relating to any Interval subsequently sold unless
and until Lender has received the Interval Release Fees applicable to the
sale of an Interval. Upon receipt by Lender of such Interval Release Fees
for each Interval sold, Lender shall deliver to Borrower a partial release
of lien pertaining to such Interval and Lender shall apply the Interval
Release Fees received by Lender to the repayment of the Pool Loans in such
order and manner as Lender may require."
4.6 Maturity Date. Section 3(e) of the Riverside Note is hereby deleted
in its entirety and the following substituted therefor:
"3(e) Maturity Date. The Loan shall be due and payable on or before
August 31, 2004 ("Maturity Date")."
4.7 Prepayment. Section 4 of the Riverside Note is hereby deleted in
its entirety and the following substituted therefor: "Borrower may prepay this
Note, in whole or in part, at any time upon fifteen (15) days' prior written
notice to Lender, upon the payment of an amount equal to the product of (A) the
Applicable Prepayment Premium Percentage (hereinafter defined) multiplied by (B)
the amount of such prepayment; provided, however, that no such prepayment
premium shall be due and payable to Lender (1) in connection with prepayments
that occur through (i) scheduled amortization payments to Lender required under
the Second Master Modification Agreement described in Section 2(a) above, and
(ii) the payment of any Interval Release Fees arising from the sale of each
Interval or any Deficiency Payment required to be paid to Lender, and (2) with
respect to any amount in excess of the Initial Discounted Principal Amount of
this Note (as defined in the Second Master Modification Agreement). As used
herein, the term "Applicable Prepayment Premium Percentage" shall mean (a) in
the event all or any portion of this Note is prepaid at any time on or before
August 31, 2002, two percent (2%), and (b) in the event all or any portion of
this Note is prepaid at any time after August 31, 2002 to and including February
28, 2003, one percent (1%)."
4.8 Indebtedness. The Riverside Note is hereby amended to add thereto
the following:
"19 Indebtedness. Borrower shall not create, incur, assume, or in any
manner become liable in respect to any Indebtedness in excess of $250,000
in the aggregate outstanding at any time except for: (i) Indebtedness to
Lender; (ii) Indebtedness evidenced by the Additional Loans (as defined in
the Second Master Modification Agreement); and (iii) Indebtedness related
to trade debt from customer receivables arising in the ordinary sale of
inventory. For purposes of this Paragraph19, the term "Indebtedness" shall
mean and refer to (a) all obligations for borrowed money, (b) all
obligations
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 26
EXHIBIT 10.1
evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations under conditional sale or other title retention agreements
relating to property or assets purchased by Borrower, and (d) all
obligations issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable and accrued obligations incurred
in the ordinary course of business such as, insurance premiums, capital
expenditures made in connection with repairs or renovation to any
improvements constituting part of the collateral for this Note, real
property taxes and utility expenses)."
SECTION 5: AVENUE PLAZA LOAN
5.1 Borrower, Guarantor and Lender. As of the date hereof, the term
"Borrower" when used with respect to the Avenue Plaza Loan or the Avenue Plaza
Loan Documents shall mean Avenue Plaza, the term "Guarantors" shall mean EFI and
Equivest Louisiana, together, and the term "Lender" shall mean CapitalSource,
regardless of how "Borrower," "Guarantor" and "Lender" may previously have been
defined in any of the Avenue Plaza Loan Documents executed prior to the date
hereof.
5.2 Amendment to Avenue Plaza Mortgage. As of the date hereof and in
consideration of CapitalSource entering into this Second Master Modification
Agreement, Borrower has executed, and Guarantors hereby consent to the execution
of, that certain Amendment to Act of Mortgage, Security Agreement and Assignment
of Leases and Rentals, acknowledging the extension of the maturity date of the
Avenue Plaza Loan as set forth in Section 5.3 hereof, amending the amount of the
"Unit Release Fee" as defined therein, and amending reporting requirements and
other covenants set forth therein.
5.3 Maturity Date. Section III B of the Avenue Plaza Note is hereby
deleted in its entirety and the following substituted therefor:
"B. Maturity Date. The entire outstanding principal balance of this
Note, together with all accrued but unpaid interest thereon and any fees,
charges, and other amounts owed by Maker to Holder, pursuant to any of the
Loan Documents, shall be payable to Holder on or before August 31, 2005
("Maturity Date") as long as no Default or Event of Default exists under
any loan document or security agreement with respect to any of the Loans
(as such term is defined in the Second Master Loan Modification dated
September 7, 2001 [the "Second Master Modification Agreement"] by and
between CapitalSource Finance LLC, Maker, Equivest Finance, Inc., Equivest
Louisiana, Inc., and the other parties thereto)."
5.4 Principal and Interest. Section II of the Avenue Plaza Note is
hereby deleted in its entirety and the following substituted therefor:
"II. Principal and Interest. Provided that no Event of Default exists,
interest shall accrue on the Applicable Principal Balance (as defined in
the Second Master Modification Agreement defined in Section III B hereof)
of this Note from time to time outstanding, and Maker shall pay interest
thereon, at a fluctuating rate per annum (on the
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 27
EXHIBIT 10.1
basis of the actual number of days elapsed over a year of 360 days) equal
to the greater of (i) the Prime Rate plus two percent (2.00%), or (ii) ten
percent (10%). The Interest Rate charged for each one (1) month period
during the term of the Loan shall be fixed based upon the Prime Rate
published or otherwise determined prior to and in effect as of the third
(3rd) Business Day following the tenth (10th) day of each calendar month.
For purposes of this Note, "Prime Rate" shall mean the prime commercial
lending rate as announced from time to time by Citibank, N.A. or its
successor, at its principal office in New York, New York, or such other
office as shall be reasonably acceptable to Lender (it being understood
that said prime commercial lending rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any
customer), each change in said rates to be effective as of the date of such
change."
5.5 Prepayment. Section IV of the Avenue Plaza Note is hereby deleted
in its entirety and the following substituted therefor:
"IV Prepayment. Maker may prepay this Note, in whole or in part,
at any time upon fifteen (15) days' prior written notice to Holder,
upon the payment of an amount equal to the product of (A) the
Applicable Prepayment Premium Percentage (hereinafter defined)
multiplied by (B) the amount of such prepayment; provided, however,
that no such prepayment premium shall be due and payable to Holder (1)
in connection with prepayments that occur through (i) the scheduled
amortization payments to Holder required under the Second Master
Modification Agreement described in Section III B hereof, and (ii) the
payments of Unit Release Fees arising from the sale(s) of any
Condominium Parcel(s) (as defined in the Declaration referenced in the
Mortgage) or any Deficiency Payment required to be paid to Holder
pursuant to the Second Master Modification Agreement, and (2) with
respect to any amount in excess of the Initial Discounted Principal
Amount of this Note (as defined in the Second Master Modification
Agreement). As used herein, the term "Applicable Prepayment Premium
Percentage" shall mean (a) in the event all or any portion of this
Note is prepaid at any time on or before August 31, 2002, two percent
(2%), (b) in the event all or any portion of this Note is prepaid at
any time after August 31, 2002 to and including August 31, 2003, one
percent (1%), and (c) in the event all or any portion of this Note is
prepaid at any time after August 31, 2003 to and including August 31,
2004, one half of one percent (0.50%)." Notwithstanding the foregoing,
Maker may prepay the entire then outstanding principal balance of this
Note including all accrued and unpaid interest earned thereon on or
before August 31, 2002, subject to the terms and conditions set forth
in Section 5.7 of the Second Master Modification Agreement defined in
Section III B hereof."
5.6 Mortgage. The definition of Mortgage in Section I of the Avenue
Plaza Note is hereby deleted in its entirety and the following substituted
therefor:
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 28
EXHIBIT 10.1
"...that certain Act of Mortgage, Security Agreement and
Assignment of Leases and Rentals dated as of December 19, 1997
executed by Maker in favor of Holder, as amended by that certain
Amendment to Act of Mortgage, Security Agreement and Assignment of
Leases and Rentals dated September 7, 2001 executed by Maker in favor
of Holder (as the same may be further amended from time to time, the
"Mortgage"), ..."
5.7 Prepayment Discount. CapitalSource, Borrower and Guarantors agree
that provided no Event of Default has occurred, Borrower and/or Guarantors may
prepay, in whole (but not less than whole), the Avenue Plaza Loan, including all
accrued and unpaid interest earned thereon at any time on or before August 31,
2002, for an amount equal to the then Applicable Principal Balance of the Avenue
Plaza Loan, less an additional amount equal to the applicable percentage set
forth below of $234,384, the portion of the Commitment Fee allocable to the
Avenue Plaza Loan, and the date of repayment of the Avenue Plaza Loan: Date of
Repayment Percentage/Amount Prior to November 30, 2001 75% or $175,788.00 From
November 30, 2001 to February 28, 2002 50% or $117,191.95 From March 1, 2002 to
August 31, 2002 25% or $58,595.97 After August 31, 2002 0% or $0.00 If Borrower
and/or Guarantors elect to prepay the entire Applicable Principal Balance of the
Avenue Plaza Loan including all accrued and unpaid interest thereon on or before
August 31, 2002, CapitalSource agrees to waive the prepayment penalty set forth
in Section IV of the Avenue Plaza Note (as amended by Section 5.5 hereof).
5.8 Indebtedness. Section 5.1 of the Avenue Plaza Mortgage is hereby
deleted in its entirety.
5.9 Additional Covenant. The Avenue Plaza Note is hereby amended to add
thereto the following:
"X .G Indebtedness. Maker shall not create, incur, assume, or in
any manner become liable in respect to any Indebtedness in excess of
$250,000 in the aggregate outstanding at any time except for: (i)
Indebtedness to Lender; (ii) Indebtedness evidenced by the Additional
Loans (as defined in the Second Master Modification Agreement); and
(iii) Indebtedness related to trade debt from customer receivables
arising in the ordinary sale of inventory. For purposes of this
Paragraph X.G, the term "Indebtedness" shall mean and refer to (a) all
obligations for borrowed money, (b) all obligations evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations
under conditional sale or other title retention agreements relating to
property or assets purchased by Maker, and (d) all obligations issued
or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in
the ordinary course of business such as, insurance
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 29
EXHIBIT 10.1
"...that certain Act of Mortgage, Security Agreement and
Assignment of Leases and Rentals dated as of December 19, 1997
executed by Maker in favor of Holder, as amended by that certain
Amendment to Act of Mortgage, Security Agreement and Assignment of
Leases and Rentals dated September 7, 2001 executed by Maker in favor
of Holder (as the same may be further amended from time to time, the
"Mortgage"), ..."
5.7 Prepayment Discount. CapitalSource, Borrower and Guarantors agree
that provided no Event of Default has occurred, Borrower and/or Guarantors may
prepay, in whole (but not less than whole), the Avenue Plaza Loan, including all
accrued and unpaid interest earned thereon at any time on or before August 31,
2002, for an amount equal to the then Applicable Principal Balance of the Avenue
Plaza Loan, less an additional amount equal to the applicable percentage set
forth below of $234,384, the portion of the Commitment Fee allocable to the
Avenue Plaza Loan, and the date of repayment of the Avenue Plaza Loan: Date of
Repayment Percentage/Amount Prior to November 30, 2001 75% or $175,788.00 From
November 30, 2001 to February 28, 2002 50% or $117,191.95 From March 1, 2002 to
August 31, 2002 25% or $58,595.97 After August 31, 2002 0% or $0.00 If Borrower
and/or Guarantors elect to prepay the entire Applicable Principal Balance of the
Avenue Plaza Loan including all accrued and unpaid interest thereon on or before
August 31, 2002, CapitalSource agrees to waive the prepayment penalty set forth
in Section IV of the Avenue Plaza Note (as amended by Section 5.5 hereof).
5.8 Indebtedness. Section 5.1 of the Avenue Plaza Mortgage is hereby
deleted in its entirety.
5.9 Additional Covenant. The Avenue Plaza Note is hereby amended to add
thereto the following:
"X .G Indebtedness. Maker shall not create, incur, assume, or in
any manner become liable in respect to any Indebtedness in excess of
$250,000 in the aggregate outstanding at any time except for: (i)
Indebtedness to Lender; (ii) Indebtedness evidenced by the Additional
Loans (as defined in the Second Master Modification Agreement); and
(iii) Indebtedness related to trade debt from customer receivables
arising in the ordinary sale of inventory. For purposes of this
Paragraph X.G, the term "Indebtedness" shall mean and refer to (a) all
obligations for borrowed money, (b) all obligations evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations
under conditional sale or other title retention agreements relating to
property or assets purchased by Maker, and (d) all obligations issued
or assumed as the deferred purchase price of property or services
(excluding trade accounts payable and accrued obligations incurred in
the ordinary course of business such as, insurance
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 29
EXHIBIT 10.1
premiums, capital expenditures made in connection with repairs or
renovation to any improvements constituting part of the collateral for
this Note, real property taxes and utility expenses)." 5.10 Release
Fees. Notwithstanding anything contained in Section 2.6 or Schedule
"A" of the Avenue Plaza Mortgage, Avenue Plaza, Equivest Louisiana,
EFI and CapitalSource agree as follows:
(a) Schedule A of the Avenue Plaza Mortgage is hereby deleted. Avenue
Plaza agrees that the term "Unit Release Fees," as used in the Avenue Plaza
Mortgage and in the Avenue Plaza Note, shall mean an amount equal to (i)
$2,500.00 for each annual Condominium Parcel sold, and (ii) $1,250 for each
biennial Condominium Parcel sold. Unit Release Fees will be paid by Avenue Plaza
to CapitalSource on a weekly or biweekly basis after the consummation of the
closing of the sale of each Condominium Parcel and will be applied by
CapitalSource to reduce the outstanding principal balance of the Avenue Plaza
Loan. CapitalSource will not be obligated to deliver to Avenue Plaza any partial
release of lien relating to any Condominium Parcel sold until (i) CapitalSource
has received the Unit Release Fee applicable to the sale of such Condominium
Parcel and (ii) all other conditions set forth in Section 2.6 of the Avenue
Plaza Mortgage have been satisfied. As used herein, the term "Condominium
Parcel" shall have the same meaning ascribed to such term in the Declaration
(defined in the Avenue Plaza Mortgage as that certain Amended and Restated
Timeshare and Condominium Declaration creating and establishing Avenue Plaza
Condominiums dated October 1, 1993 and registered in the Notarial Archives,
Orleans Parish as No. 93-41669, and in the Conveyance Office of the Parish of
Orleans under Instrument No. 76107, as amended from time to time).
(b) Notwithstanding the foregoing or any other term or provision of the
Avenue Plaza Note to the contrary, Avenue Plaza shall be required to pay
CapitalSource an amount (the "Deficiency Payment") equal to the difference
between (i) $1,550,000 and (ii) the sum of all Unit Release Fees paid by Avenue
Plaza pursuant to subparagraph (a) above during the preceding twelve (12)
calendar month period ending on August 31st, which Deficiency Payments shall be
paid by Avenue Plaza to CapitalSource commencing on August 31, 2002, and
continuing on each subsequent August 31 during the term of the Avenue Plaza Note
until August 24, 2005, whereupon the entire principal balance hereof, together
with all accrued but unpaid interest thereon and any fees, charges and other
amounts owed by Avenue Plaza to CapitalSource hereunder, shall be payable to
CapitalSource in full; it being the intent of the parties hereto that
notwithstanding the number of Condominium Parcels sold during such twelve (12)
month period, Avenue Plaza shall make principal payments to CapitalSource for
such twelve (12) month period in the aggregate of at least $1,550,000.
Notwithstanding anything set forth above to the contrary, in the event that the
Unit Release Fees paid to CapitalSource during any twelve (12) month period
exceed the minimum amount required during such period, then the excess amount
shall be applied by CapitalSource to reduce the minimum amount due for the
immediately following twelve month period. Upon receipt by CapitalSource of any
Deficiency Payment in accordance with the foregoing, CapitalSource shall execute
and deliver to Avenue Plaza a partial release of lien with respect to a certain
number of Condominium Parcels equal to the amount of the Deficiency
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 30
EXHIBIT 10.1
Payment divided by the Unit Release Fee applicable to such
Condominium Parcel; provided, however, that CapitalSource shall
determine, in its sole discretion, the Condominium Parcel to be
released."
5.11 One-Time Additional Advance; Promise to Pay. Notwithstanding
anything in the Avenue Plaza Note to the contrary, CapitalSource agrees that, on
the Second Master Modification Closing Date, CapitalSource shall make a one-time
additional advance ("Special Avenue Plaza Advance") to Avenue Plaza of proceeds
under the Avenue Plaza Note and Avenue Plaza Loan Documents, which Special
Avenue Plaza Advance shall not exceed $700,000. CapitalSource shall have no
further obligations to make additional advances under the Avenue Plaza Note and
Avenue Plaza Loan Documents. No portion of the principal amount of the Avenue
Plaza Note (including the Special Avenue Plaza Advance), once repaid, shall be
readvanced by CapitalSource. Avenue Plaza hereby promises to pay to the order of
CapitalSource Finance LLC, its successors and assigns, in immediately available
funds in lawful money of the United States of America, the principal sum of
$700,000 (or the unpaid balance thereof, if that amount is less), representing
the Special Avenue Plaza Advance, together with interest on such amount from day
to day outstanding, as provided in the Avenue Plaza Note. Interest on the
Special Avenue Plaza Advance shall accrue and be due and payable in the same
manner as interest accruing with respect to the other portion of the Avenue
Plaza Loan in accordance with the Avenue Plaza Note and this Second Master
Modification Agreement. The unpaid principal amount of the Special Avenue Plaza
Advance shall be due and payable in full, on or before the earlier to occur of
(i) the date that CapitalSource exercises the Put Option as provided in Section
9.26 hereof, or (ii) August 31, 2005 (the "Special Avenue Plaza Advance Maturity
Date"). In addition to the foregoing, Avenue Plaza shall make principal payments
in respect of the Special Avenue Plaza Advance upon the sale of Intervals
secured by the Avenue Plaza Mortgage in the same manner and in accordance with
the Avenue Plaza Note and this Second Master Modification Agreement. All Unit
Release Fees paid to CapitalSource in connection with the sale of any Intervals
secured by the Avenue Plaza Mortgage shall be applied first to reduce the unpaid
principal balance of the Special Avenue Plaza Advance, then to reduce the
remaining portion of the unpaid principal balance of the Avenue Plaza Loan. The
Special Avenue Plaza Advance shall be treated as a separate obligation of Avenue
Plaza owing to CapitalSource, as evidenced by the foregoing; provided, however,
that if CapitalSource does not exercise the Put Option on or before the
expiration of the same, then the Special Avenue Plaza Advance and the remaining
portion of the Avenue Plaza Loan shall be treated as one, combined obligation,
evidenced by the Avenue Plaza Note, as modified by this Second Master
Modification Agreement. The provisions of this Section 5.11 shall survive the
termination or expiration of this Second Master Modification.
SECTION 6: ST. THOMAS LOAN
6.1 Borrowers, Guarantor and Lender. As of the date hereof, the term
"Borrowers" when used with respect to the St. Thomas Loan or the St. Thomas Loan
Documents shall mean Bluebeard and Castle, together, the term "Guarantor" shall
mean EFI and Equivest St. Thomas, together, and the term "Lender" shall mean
CSFB, regardless of how "Borrowers," "Guarantor" and "Lender" may previously
have been defined in any of the St. Thomas Loan Documents executed prior to the
date hereof.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 31
EXHIBIT 10.1
6.2 Amendment to St. Thomas Mortgage. As of the date hereof and in
consideration of CapitalSource entering into this Second Master Modification
Agreement, Borrower has executed, and Guarantors hereby consent to the execution
of, that certain Amendment to Deed of Trust and Security Agreement,
acknowledging the extension of the maturity date of the St. Thomas Loan as set
forth in Section 6.3 hereof, and acknowledging the cross-collateralization of
the St. Thomas Loan with the other Loans as set forth in the First Master
Modification Agreement and as set forth in Section 9.6 of this Second Master
Modification Agreement.
6.3 Maturity Date. Section III B of the St. Thomas Note is hereby
deleted in its entirety and the following substituted therefor:
"B. Maturity Date. The entire outstanding principal balance of
this Note, together with all accrued but unpaid interest thereon and
any fees, charges, and other amounts owed by Maker to Holder, pursuant
to any of the Loan Documents, shall be payable to Holder on or before
August 31, 2005 ("Maturity Date") as long as no Default or Event of
Default exists under any loan document or security agreement with
respect to any of the Loans (as such term is defined in the Second
Master Loan Modification dated September 7, 2001 [the "Second Master
Modification Agreement"] by and between CapitalSource Finance LLC,
Maker, Equivest Finance, Inc., Equivest St. Thomas, and the other
parties thereto)."
6.4 Principal and Interest. Section II of the St. Thomas Note is hereby
deleted in its entirety and the following substituted therefor: "II. Principal
and Interest. Provided that no Event of Default exists, interest shall accrue on
the Applicable Principal Balance (as defined in the Second Master Modification
Agreement defined in Section III B hereof) of this Note from time to time
outstanding, and Maker shall pay interest thereon, at a fluctuating rate per
annum (on the basis of the actual number of days elapsed over a year of 360
days) equal to the greater of (i) the Prime Rate plus two percent (2.00%), or
(ii) ten percent (10%). The Interest Rate charged for each one (1) month period
during the term of the Loan shall be fixed based upon the Prime Rate published
or otherwise determined prior to and in effect as of the third (3rd) Business
Day following the tenth (10th) day of each calendar month. For purposes of this
Note, "Prime Rate" shall mean the prime commercial lending rate as announced
from time to time by Citibank, N.A. or its successor at its principal office in
New York, New York, or such other office as shall be reasonably acceptable to
Holder (it being understood that said prime commercial lending rate is a
reference rate and does not necessarily represent the lowest or best rate being
charged to any customer), each change in said rates to be effective as of the
date of such change."
6.5 Prepayment. Section IV of the St. Thomas Note is hereby deleted in
its entirety and the following substituted therefor:
"IV Prepayment. Maker may prepay this Note, in whole or in part,
at any time upon fifteen (15) days' prior written notice to Holder,
upon the payment of an amount equal to the product of (A)
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 32
EXHIBIT 10.1
the Applicable Prepayment Premium Percentage (hereinafter defined)
multiplied by (B) the amount of such prepayment; provided, however,
that no such prepayment premium shall be due and payable to Holder (1)
in connection with prepayments that occur through (i) scheduled
amortization payments to Holder required under the Second Master
Modification Agreement, and (ii) payments of Interval Sales Fees
arising from sales of Intervals or any Deficiency Payment required to
be paid to Holder, and (2) with respect to any amount in excess of the
Initial Discounted Principal Amount of this Note (as defined in the
Second Master Modification Agreement). As used herein, the term
"Applicable Prepayment Premium Percentage" shall mean (a) in the event
all or any portion of this Note is prepaid at any time on or before
August 31, 2002, two percent (2%), (b) in the event all or any portion
of this Note is prepaid at any time after August 31, 2002 to and
including August 31, 2003, one percent (1%), and (c) in the event all
or any portion of this Note is prepaid at any time after August 31,
2003 to and including August 31, 2004, one half of one percent
(0.50%)."
6.6 Interval Release Fees. Section III.C of the St. Thomas Note and
Section 2.5(a)(ii) of the St. Thomas Loan Agreement are hereby modified to the
extent necessary to conform the same to the following:
(a) Commencing on the date hereof to and including the Maturity
Date, Borrowers shall pay CapitalSource, via wire transfer, an amount
equal to (i) $2,500 per annual Interval sold in the Resort, and (ii)
$1,250 per biennial Interval Sold in the Resort. Such Interval Sales
Fees shall be paid by Borrowers to CapitalSource on a weekly or
biweekly basis after the consummation of the closing of the sale of
each Interval and applied by CapitalSource to reduce the outstanding
principal balance of the St. Thomas Note. CapitalSource will not be
obligated to deliver to Borrowers any partial release of lien relating
to any Interval sold until (i) CapitalSource has received the Interval
Sales Fees applicable to the sale of such Interval and (ii) all other
conditions set forth in the St. Thomas Loan Agreement have been
satisfied.
(b) Notwithstanding the foregoing or any other term or provision
of the St. Thomas Note to the contrary, Borrowers shall be required to
pay CapitalSource an amount (the "Deficiency Payment") equal to the
difference between (i) $1,690,000 and (ii) the sum of all Interval
Sales Fees paid by Borrowers pursuant to subparagraph (a) above during
the preceding twelve (12) calendar month period ending on August 31st,
which Deficiency Payments shall be paid by Borrowers to CapitalSource
commencing on August 31, 2002, and continuing on each subsequent
August 31 during the term of this Note until August 31, 2005,
whereupon the entire principal balance hereof, together with all
accrued but unpaid interest thereon and any fees, charges and other
amounts owed by Borrowers to CapitalSource hereunder, shall be payable
to CapitalSource in full; it being the intent of the parties hereto
that notwithstanding the number of Intervals sold during such twelve
(12) month period, Borrowers shall make principal payments to
CapitalSource for such twelve (12) month period in the aggregate of at
least $1,690,000. Notwithstanding anything set forth above to the
contrary, in the event that the Interval Sales Fees paid to
CapitalSource during any twelve (12) month period
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 33
EXHIBIT 10.1
exceed the minimum amount required during such period, then the excess amount
shall be applied by CapitalSource to reduce the minimum amount due for the
immediately following twelve month period. Upon receipt by CapitalSource of any
Deficiency Payment in accordance with the foregoing, CapitalSource shall execute
and deliver to Borrowers a partial release of lien with respect to a certain
number of Intervals equal to the amount of the Deficiency Payment divided by the
Interval Sales Fee applicable to such Intervals; provided, however, that
CapitalSource shall determine, in its sole discretion, the Intervals to be
released. (c) Borrowers acknowledge that the St. Thomas Mortgage does and
continues to secure the other Pool Loans in accordance with Section 9.6 of this
Second Master Modification Agreement.
6.7 Guarantor. The definition of Guarantor in Section 1.43 of the St.
Thomas Loan Agreement is hereby deleted and the following substituted therefor:
"1.43 Guarantor. Together, Equivest Finance, Inc., a Delaware
corporation ("EFI") and Equivest St. Thomas, Inc., a United States Virgin
Islands corporation ("Equivest St. Thomas")."
6.8 Maturity Date. The definition of Maturity Date in Section 1.61 of
the St. Thomas Loan Agreement is hereby deleted and the following substituted
therefor:
"1.61 Maturity Date. The Loan shall mature and be payable in full on
August 31, 2005 ("Maturity Date") as long as no Default or Event of Default
exists under any loan document or security agreement with respect to any of the
Loans (as such term is defined in the Second Master Loan Modification Agreement
dated September 7, 2001 [the "Second Master Modification Agreement"] by and
between CapitalSource Finance LLC, Borrower, Equivest Finance, Inc., Equivest
St. Thomas, Inc. and certain other parties)."
6.9 Interest Rate. The definition of Applicable Interest Rate in
Section 1.12(a) of the St. Thomas Loan Agreement is hereby deleted and the
following substituted therefor:
"(a) For the Acquisition/Development Component of the Loan, on
any given date, a fluctuating rate per annum (on the basis of the
actual number of days elapsed over a year of 360 days) equal to the
greater of (i) the Prime Rate plus two percent (2.00%), or (ii) ten
percent (10%). The Applicable Interest Rate charged for each one (1)
month period during the term of the Loan shall be fixed based upon the
Prime Rate published or otherwise determined prior to and in effect as
of the third (3rd) Business Day following the tenth (10th) day of each
calendar month. As used herein, the term "Prime Rate" shall mean the
prime commercial lending rate as announced from time to time by
Citibank, N.A. or its successor at its principal office in New York,
New York, or such other office as shall be reasonably acceptable to
Lender (it being understood that said prime commercial lending rate is
a reference rate and does not necessarily represent the lowest or
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 34
EXHIBIT 10.1
best rate being charged to any customer), each change in said rates to be
effective as of the date of such change." 6.10 Reporting Requirements.
Section 6.1(g) of the St. Thomas Loan Agreement is hereby deleted in its
entirety and replaced with the provisions of Section 9.13 hereof, it being
the intent of the parties hereto that such provisions shall hereafter
supercede said Section 6.1(g). 6.11 Indebtedness. Section 6.3(a) of the St.
Thomas Loan Agreement is hereby deleted in its entirety and the following
substituted therefor:
"(a) Indebtedness. Borrowers shall not create, incur, assume, or in any
manner become liable in respect to any Indebtedness in excess of $250,000 in the
aggregate outstanding at any time except for: (i) Indebtedness to Lender; (ii)
Indebtedness evidenced by the Additional Loans (as defined in the Second Master
Modification Agreement described in Section 1.61 hereof); and (iii) Indebtedness
related to trade debt from customer receivables arising in the ordinary sale of
inventory. For purposes of this Section 6.3(a), the term "Indebtedness" shall
mean, with respect to each of the Borrowers (individually and together), (a) all
obligations for borrowed money,
(b) all obligations evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations under conditional sale or other title retention
agreements relating to property or assets purchased by Borrowers, and (d) all
obligations issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable and accrued obligations incurred in
the ordinary course of business such as, insurance premiums, capital
expenditures made in connection with repairs or renovation to any improvements
constituting part of the Collateral, real property taxes and utility expenses)."
6.12 Escrowed Funds. Borrowers and CapitalSource acknowledge that
approximately $98,000 of funds ("Escrow Funds") have been previously escrowed by
CSFB for the purpose of financing renovations to the St. Thomas Resort to comply
with the requirements of The Americans With Disabilities Act of 1990 (42 U.S.C.
ss. 12101 et seq.), and any applicable state, district or local requirements
("ADA"). CapitalSource agrees that, upon receipt of the Escrow Funds by
CapitalSource from CSFB, CapitalSource shall apply the Escrow Funds to reduce
the principal balance of the St. Thomas Loan in the same manner as an Interval
Sales Fee paid under the St. Thomas Loan Documents.
6.13 One-Time Additional Advance; Promise to Pay. Notwithstanding
anything in the St. Thomas Note to the contrary, CapitalSource agrees that, in
connection with the execution of this Second Master Modification, CapitalSource
shall make a one-time additional advance ("Special St. Thomas Advance") to
Bluebeard and Castle of proceeds under the St. Thomas Note and St. Thomas Loan
Documents, which Special St. Thomas Advance shall not exceed $300,000.
CapitalSource shall have no further obligations to make additional advances
under the St. Thomas Note and St. Thomas Loan Documents. No portion of the
principal amount of the St. Thomas Note (including the Special St. Thomas
Advance), once repaid, shall be readvanced by CapitalSource. Bluebeard and
Castle, jointly and severally, hereby promise to pay to the order of
CapitalSource Finance LLC, its successors and assigns, in immediately available
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 35
EXHIBIT 10.1
funds in lawful money of the United States of America, the principal sum of
$300,000 (or the unpaid balance thereof, if that amount is less), representing
the Special St. Thomas Advance, together with interest on such amount from day
to day outstanding, as provided in the St. Thomas Note. Interest on the Special
St. Thomas Advance shall accrue and be due and payable in the same manner as
interest accruing with respect to the other portion of the St. Thomas Loan in
accordance with the St. Thomas Note and this Second Master Modification
Agreement. The unpaid principal amount of the Special St. Thomas Advance shall
be due and payable in full, on or before the earlier to occur of (i) the date
that CapitalSource exercises the Put Option as provided in Section 9.26 hereof,
or (ii) August 31, 2005 (the "Special St. Thomas Advance Maturity Date"). In
addition to the foregoing, Bluebeard and Castle, jointly and severally, shall
make principal payments in respect of the Special St. Thomas Advance upon the
sale of Intervals secured by the St. Thomas Mortgage in the same manner and in
accordance with the St. Thomas Note and this Second Master Modification
Agreement. All Interval Release Fees paid to CapitalSource in connection with
the sale of any Intervals secured by the St. Thomas Mortgage shall be applied
first to reduce the unpaid principal balance of the Special St. Thomas Advance,
then to reduce the remaining portion of the unpaid principal balance of the St.
Thomas Loan. The Special St. Thomas Advance shall be treated as a separate
obligation of Bluebeard and Castle owing to CapitalSource, as evidenced by the
foregoing; provided, however, that if CapitalSource does not exercise the Put
Option on or before the expiration of the same, then the Special St. Thomas
Advance and the remaining portion of the St. Thomas Loan shall be treated as
one, combined obligation, evidenced by the St. Thomas Note, as modified by this
Second Master Modification Agreement. The provisions of this Section 6.13 shall
survive the termination or expiration of this Second Master Modification.
SECTION 7: A&D LOAN
7.1 Borrower, Guarantor and Lender. As of the date hereof, the term
"Borrower" when used with respect to the A&D Loan or the A&D Loan Documents
shall mean RFI, the term "Guarantor" shall mean EFI, and the term "Lender" shall
mean CapitalSource, regardless of how "Borrower," "Guarantor" and "Lender" may
previously have been defined in any of the A&D Loan Documents executed prior to
the date hereof.
7.2 Termination of A&D Loan.
(a) Borrower and CapitalSource acknowledge and agree that, as of the
Second Master Modification Closing Date, the unpaid principal balance of the A&D
Loan, together with interest, expenses, fees or other charges, owing from
Borrowers to CapitalSource thereunder, is $0.00.
(b) Upon receipt by CapitalSource of the documents listed in Section
7.1(d) below (the "A&D Termination Documents"), and satisfaction of the other
conditions set forth in Section 9.14 hereof, the A&D Loan shall be deemed
terminated and CapitalSource shall execute and deliver to Borrower Uniform
Commercial Code termination statements and such other documents and instruments
as are necessary to release and terminate certain security interests, liens,
mortgages, or other encumbrances related to the A&D Loan, all of which shall be
in form sufficient for filing and recording with all applicable filing and
recording offices.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 36
EXHIBIT 10.1
(c) As of the Second Master Modification Closing Date, Borrowers agree
that CapitalSource shall have no obligations under the terms of the A&D Loan
Agreement or any other Loan Document relating to the A&D Loan, including any
obligation to advance any amounts to Borrowers in accordance with the terms
therein.
(d) Prior to the termination of the A&D Loan, Borrowers shall deliver
to CapitalSource (i) a mutual release signed by Borrowers and all guarantors, in
form and content satisfactory to CapitalSource, and (ii) such other
documentation reasonably required by CapitalSource.
7.3 Riverside Loan, Coconut Palms Loan and Ellington Loan.
Notwithstanding anything to the contrary herein or in any other Loan Document or
Trust Document, it is the intent of the parties hereto that the Riverside Loan,
the Coconut Palms Loan and the Ellington Loan and the obligations thereunder
shall continue in full force and effect, notwithstanding the termination of the
A&D Loan. Equivest Texas and EFI hereby acknowledge and agree that each intends
that the Riverside Loan and the duties and obligations evidenced by the
Riverside Note and the other Riverside Loan Documents are and shall be direct
obligations to CapitalSource and not merely collateral for the A&D Loan or any
of the other Loans or Trust Loans.
SECTION 8: DC LOAN
8.1 Borrower, Guarantor and Lender. As of the date hereof, the term
"Borrower" when used with respect to the DC Loan or the DC Loan Documents shall
mean EFI DC, and the term "Lender," "Holder" shall mean CapitalSource,
regardless of how "Borrower," "Lender," and "Holder" may previously have been
defined in any of the DC Loan Documents executed prior to the date hereof.
8.2 Amendment to DC Mortgage. As of the date hereof and in
consideration of CapitalSource entering into this Second Master Modification
Agreement, EFI DC has executed that certain Amendment to Purchase Money Deed of
Trust, Assignment of Rents and Leases and Security Agreement, clarifying that
the DC Mortgage secures the outstanding indebtedness evidenced by the Loans.
8.3 Potential Sale of Washington, DC Property. EFI and EFI DC have
offered to sell the property owned by EFI DC located at 2501 Pennsylvania
Avenue, N.W., Washington, D.C. (the "DC Property"). Upon the consummation and
closing of such sale, EFI and EFI DC agree to cause any escrow agent or title
company responsible for such closing to remit directly to CapitalSource (without
application of the prepayment fee set forth in Section IV of the Bridge Loan
Note and Section 2.6 of the Bridge Loan Agreement) an amount of proceeds
sufficient to pay in full, the then Applicable Principal Balance of the Bridge
Loan ("DC Property Proceeds") (regardless of the gross purchase price or net
proceeds), whereupon CapitalSource will (i) apply the DC Property Proceeds to
repay the Bridge Loan and (ii) execute and deliver to EFI DC a complete
satisfaction and discharge of the DC Mortgage and the Bridge Loan Documents.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 37
EXHIBIT 10.1
SECTION 9: ADDITIONAL TERMS
9.1 Commitment Fee and Interim Interest. In consideration of entering
this Second Master Modification Agreement, CapitalSource has earned a commitment
fee (the "Commitment Fee") equal to $671,779.58, less that portion of the
deposit of $25,000 heretofore paid by Borrowers to CapitalSource remaining after
application of such deposit to out-of-pocket expenses, which Commitment Fee
shall be payable on the date of execution of this Second Master Modification.
Also, Borrowers agree that, for purposes of "booking" the Loans and ease of
administration of the Loans, interest shall accrue on the Loans from August 30,
2001, the date of acquisition of the Loans from CSFB by CapitalSource,
notwithstanding the actual effective date of this Second Master Modification
Agreement.
9.2 Warrants.
(a) Definitions. The following terms used in this Section
9.2 shall have the following meanings:
(i) "VWAP" shall mean the volume-weighted average trading price of the
EFI common stock twenty (20) business days preceding a particular measuring
date.
(ii) "$2.02 Warrants" shall mean those certain warrants to purchase
200,000 shares of common stock of EFI, originally issued to CSFB on April 20,
2001, with an exercise price equal to the VWAP per share as of the date of the
First Master Modification Agreement and an expiration date of five (5) years
after date of the First Master Modification Agreement. Pursuant to the Loan Sale
Agreement all of such warrants have been assigned to CapitalSource Holdings, an
affiliate of CapitalSource.
(iii) "$2.52 Warrants" shall mean those certain warrants to purchase
200,000 shares of common stock of EFI, originally issued to CSFB on April 20,
2001, with an exercise price equal to the VWAP plus $.50 per share as of the
date of the First Master Modification Agreement and an expiration date of five
(5) years after date of the First Master Modification Agreement. Pursuant to the
Loan Sale Agreement all of such warrants have been assigned to CapitalSource
Holdings.
(iv) "$8.00 Warrants" shall mean those certain warrants to purchase
180,000 shares of common stock of EFI, originally issued to CSFB on July 17,
1998, with an exercise price equal to $8.00 per share and an expiration date of
July 18, 2003. Pursuant to the Loan Sale Agreement all of such warrants have
been assigned to CapitalSource Holdings.
(b) Transfer of $2.02 Warrants. Within 10 days after the Second Master
Modification Closing Date, CapitalSource Holdings shall transfer, for
cancellation by EFI, all of the $2.02 Warrants to EFI.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 38
EXHIBIT 10.1
(c) Transfer of $2.52 and $8.00 Warrants. CapitalSource and
CapitalSource Holdings hereby agree that if the Avenue Plaza Loan is irrevocably
paid in full and in cash on or before February 28, 2002 and no Default or Event
of Default has occurred under any of the Loan Documents as of or prior to the
date of such repayment then, within a reasonable period after confirmation of
such payment of the Avenue Plaza Loan, CapitalSource Holdings shall transfer,
for cancellation by EFI, all of the $2.52 Warrants and all of the $8.00
Warrants. EFI agrees that such transfer shall be without cost or expense to
CapitalSource or CapitalSource Holdings and, without limiting any other
provision of this Second Master Modification Agreement or any of the agreements
executed in connection herewith, EFI hereby agrees to pay all costs and expenses
(including attorney fees), if any, associated with such transfer of warrants to
EFI.
(d) Representations. EFI hereby represents and warrants to
CapitalSource Holdings that any and all conditions precedent for the transfer of
all Warrants listed on Exhibit "L" attached hereto from CSFB to CapitalSource
Holdings and all Registration Rights Agreements related thereto, including any
notice provisions, have been completely satisfied by CSFB, as transferor and
CapitalSource Holdings, as transferee. EFI hereby waives any right to object to
the transfer of the above-referenced Warrants and Registration Rights
Agreements.
9.3 Contingent Discounts Applicable to Repayment of Loans.
CapitalSource, Borrowers and Guarantors have agreed that, so long as no Event of
Default has occurred and is continuing under any of the Loan Documents and upon
payment by Borrowers to CapitalSource of all other costs, expenses and other
amounts, if any, payable to CapitalSource under the Loan Documents, the total
amount of principal required to repay, in full, each the Loans shall be
determined as follows:
(a) with respect to the Avenue Plaza Loan, the amount required to repay
the Avenue Plaza Loan shall be determined in accordance with the provisions of
Section 5.7 hereof and, with respect to the Bridge Loan, the amount required to
repay the Bridge Loan shall be determined in accordance with Section 2.6 hereof;
and
(b) with respect to the repayment of all other Loans (other than the
Avenue Plaza Loan and the Bridge Loan) (collectively, the "Pool Loans"), the
amount required to repay all of the Pool Loans, simultaneously, shall be equal
to (i) the then current Adjusted Aggregate Loan Amount, less (ii) the aggregate
Discount Amounts allocated to each of the Pool Loans as set forth in Exhibit "N"
attached hereto, plus (iii) the prepayment penalty or penalties applicable to
the repayment of such Pool Loans, if any, calculated in accordance with the
provisions of this Second Master Modification Agreement; and
(c) if Borrowers elect to repay any one or more of the Pool Loans
(without the simultaneous repayment of all of the Pool Loans) and, if after such
repayment, at least one of the Pool Loans remains outstanding, the amount
required to repay each such Pool Loan shall be equal to (i) the then outstanding
principal balance of such Pool Loan, plus (ii) the amount of any prepayment
penalty applicable to the repayment of any such Pool Loan, calculated in
accordance with this Second Master Modification Agreement; provided, however,
that if and when all of the Pool Loans are repaid in full, the Discount Amount
allocated to such
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 39
EXHIBIT 10.1
Pool Loan as set forth on Exhibit "N" hereof shall be credited against the
amount required to repay the last outstanding Pool Loan in accordance with
subparagraph (d) below; and (d) with respect to the repayment of any one or more
of the Pool Loans (if, after such repayment, all of the Pool Loans will have
been repaid in full), the amount required to repay each such Pool Loan shall be
equal to (i) the then current Adjusted Aggregate Loan Amount of the outstanding
Pool Loans, less (ii) the aggregate Discount Amounts allocated to all of the
Pool Loans (including those previously repaid in full) as set forth in Exhibit
"N" attached hereto, plus (iii) the prepayment penalty or penalties applicable
to the repayment of such Pool Loans, calculated in accordance with the
provisions of this Second Master Modification Agreement.
9.4 Expenses of CapitalSource. Borrowers and Guarantors hereby agree,
jointly and severally, to pay on demand all costs and expenses incurred by
CapitalSource in connection with the preparation, negotiation and execution of
this Second Master Modification Agreement and all other documents executed
pursuant hereto and any and all amendments, modifications, and supplements
thereto, including, without limitation, the costs and fees of CapitalSource's
legal counsel, the cost of endorsements to title insurance, recording fees, and
all costs and expenses incurred by CapitalSource in connection with the
enforcement or preservation of any rights under the Loans and Loan Documents, as
amended and modified hereby, including, without, limitation, the costs and fees
of CapitalSource's legal counsel.
9.5 Principal and Interest Payments.
(a) Interest Payments. Notwithstanding any term, provision or condition
of the Loan Documents to the contrary, each Borrower agrees to make monthly
interest payments to CapitalSource, which shall be due and payable monthly in
arrears on the tenth (10th) calendar day of each calendar month, commencing
October 10, 2001, at the rates per annum established for each Loan by this
Second Master Modification Agreement. Such payments shall be made in immediately
available funds and shall be payable by each Borrower to CapitalSource at its
address set forth in Section 9.17 hereof or at such other address as
CapitalSource may require by notice to Borrowers. Failure to make any scheduled
interest payment shall constitute an Event of Default under each of the Loans.
It is the intent of all parties hereto that this Section 9.5(a) supercede any
contrary provisions in the Loan Documents relating to payments of interest for
each Loan.
(b) Monthly Bridge Loan Amortization Payments. If, and only if, the
Bridge Loan has not been repaid in full on or before September 1, 2002, then
commencing on September 10, 2002 and continuing the tenth (10th) day of each
successive month thereafter until the Bridge Loan has been repaid in full, EFI
agrees to pay to CapitalSource monthly payments of $100,000, to be applied by
CapitalSource to the then outstanding principal balance of the Bridge Loan and
all accrued and unpaid interest thereon. If, after September 1, 2002, EFI or EFI
DC enter into a contract to sell the DC Property and the sale of the DC Property
closes before the repayment in full of the Bridge Loan, then EFI and EFI DC will
pay to CapitalSource, with the proceeds generated
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 40
EXHIBIT 10.1
by the sale of the DC Property, an amount equal to the then Applicable Principal
Balance of the Bridge Loan whereupon CapitalSource will deliver to EFI DC a
complete satisfaction and discharge of the DC Mortgage and the Bridge Loan
Documents.
9.6 Cross-Collateralization; Release Conditions for Pool Loans. All of
the Loans are and shall continue to be cross-defaulted and cross-collateralized.
Each of the Borrowers hereby acknowledges and agrees that all liens, pledges,
assignments, mortgages and security interests granted by any Borrower in favor
of CapitalSource (or its predecessor in interest) which constitute Collateral
for each of the Loans shall constitute Collateral for each of the remaining
Loans and for all obligations owed by any Borrower to CapitalSource; provided,
however, that in the event the Bridge Loan or the Avenue Plaza Loan are paid in
full, CapitalSource, as a condition to such repayment, shall discharge the
mortgage and any related security documents for such Loan at the time of such
repayment as and when provided by this Second Master Modification Agreement
(including, upon payment of the Bridge Loan, the release of the DC Mortgage).
Upon repayment in full of the Pool Loans (e.g., the St. Thomas Loan, the Ocean
City Loan and the Riverside Loan), CapitalSource shall have no obligation to
release and discharge the liens and security interests and other Loan Documents
applicable to the repaid Pool Loan unless and until the following conditions
have been satisfied, as determined by CapitalSource:
(a) Notwithstanding payment in full of the Riverside Loan and/or the
Ocean City Loan, the Riverside Loan Documents and the Ocean City Loan Documents
and the collateral secured thereby shall continue to secure the St. Thomas Loan
and Interval Release Fees shall continue to be paid to CapitalSource in
accordance with Section 3.5 and Section 4.5 hereof until (i) each of the
Riverside Loan and the Ocean City Loan has been repaid from periodic sales of
Intervals (in the ordinary course of business) and the payment of Interval
Release Fees as set forth in Section 3.5 and Section 4.5 of this Second Master
Modification Agreement, (ii) Bluebeard and/or Castle have paid to CapitalSource,
to be applied to the Initial Discounted Principal Balance of the St. Thomas
Loan, an amount equal to at least $5,000,000 so that the then outstanding
Applicable Principal Balance of the St. Thomas Loan has been reduced to
$5,918,856, and (iii) CapitalSource has confirmed that, for the immediately
preceding six (6) calendar months prior to any date of calculation by
CapitalSource hereunder, not less than 360 Intervals encumbered by the St.
Thomas Mortgage have been sold by Bluebeard or Castle for an average price equal
to not less than $8,500 per Interval; and
(b) If (i) the Riverside Loans and the Ocean City Loans have been
repaid from periodic sales of Intervals (in the ordinary course of business) and
the payment of Interval Release Fees as set forth in Section 3.5 and Section 4.5
of this Second Master Modification Agreement, and (ii) the St. Thomas Loan has
not been repaid in full, then Borrowers may prepay the St. Thomas Loan, as part
of a collective refinancing of the Riverside Loan, the Ocean City Loan and the
St. Thomas Loan, without payment of any prepayment penalty as otherwise required
by Section 6.5 hereof, which prepayment penalty shall be deemed waived by
CapitalSource. CapitalSource will release and discharge the Riverside Loan
Documents and the Ocean City Loan Documents only if and when the conditions set
forth in clauses
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 41
EXHIBIT 10.1
(a) or (b) above have been satisfied. CapitalSource will release and
discharge the St. Thomas Loan Documents if and when (i) the Riverside
Loan and the Ocean City Loan each has been repaid from periodic sales
of Intervals (in the ordinary course of business) and the payment of
Interval Release Fees as set forth in Section 3.5 and Section 4.5 of
this Second Master Modification Agreement, and (ii) the conditions set
forth in clauses (a) or (b) above have been satisfied. CapitalSource
shall have no obligation to waive the prepayment penalty applicable to
the St. Thomas Loan unless the Riverside Loan and the Ocean City Loan
have been paid from periodic sales of Intervals (as opposed to
refinance proceeds, in whole or in part). Upon payment in full of the
Riverside Loan, the Ocean City Loan, or both, all Interval Release
Fees received by CapitalSource upon the sale of Intervals encumbered
by the Riverside Mortgage and Ocean City Mortgage, as applicable,
shall be applied by CapitalSource to the repayment of the outstanding
principal balance of the Pool Loans (and all prepayment penalties
applicable thereto) in the order set forth on Exhibit "B" attached
hereto. 9.7 Additional Loans. Borrowers hereby represent, warrant and
covenant to CapitalSource that no default or event of default
currently exists with respect to the Additional Loans and each of the
Borrowers will comply with all of its respective covenants and
obligations in respect of the Additional Loans. 9.8 Payment Default.
Borrowers agree to notify CapitalSource in writing of any failure by
Borrowers to make any required payment to a lender regarding any loan
having an unpaid principal balance in excess of $250,000 on the date
such payment is due under such loan pursuant to the applicable loan
documents or security agreements, either during the term of the loan
or at the loan's maturity ("Payment Default"). Such notice shall be
hand-delivered or delivered by facsimile to CapitalSource at the
address set forth below immediately after such Payment Default occurs.
In the event Borrowers have cure rights under any loan document or
security agreement with respect to any such Payment Default, Borrowers
shall reference such cure rights in this written notice as well as
providing as part of such written notice an explanation of how
Borrowers intend to cure such Payment Default. 9.9 CapitalSource
Compliance. Borrowers and Guarantors hereby acknowledge and represent
that CapitalSource has complied fully with all of its obligations
under the Loans and related Loan Documents through the date hereof and
is not currently in default thereunder. 9.10 Acknowledgement.
Borrowers and Guarantors hereby acknowledge and represent that no
action by CapitalSource hereunder will amend, modify, waive, release
or otherwise prejudice CapitalSource's rights and remedies under the
Loans or any of Borrowers' or Guarantors' obligations under the Loan
Documents, except as specifically provided herein. 9.11 Exit Fee.
Borrowers, Guarantors and CapitalSource acknowledge and agree that,
pursuant to the Loan Sale Agreement, CapitalSource is purchasing from
CSFB, at a certain discounted rate, all of CSFB's right, title and
interest in the Loans. Borrowers, Guarantors and CapitalSource have
agreed that, so long as no Default or Event of Default exists
hereunder or under any of the other Loan Documents and the Loans are
repaid, in full, as and when required by the terms of the Loan
Documents and this Second Master Modification Agreement, (i) upon
repayment of the Loans, Borrowers will be entitled to share in a
portion of such discount as provided in Section 9.3 hereof, and (ii)
interest shall accrue on the Loans on the basis of Applicable
Principal Balance of each Loan. If,
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 42
EXHIBIT 10.1
however, as a Default or Event of Default occurs hereunder or under any of the
other Loan Documents (after giving effect to any grace or notice period) or the
Loans are not repaid, in full, as and when required by the terms of the Loan
Documents and this Second Master Modification Agreement, then Borrowers and
Guarantors shall pay to CapitalSource, on demand, an additional amount (herein,
the "Exit Fee") equal to the sum of (i) the aggregate Discount Amounts set forth
on Exhibit "N" attached hereto, (ii) plus interest on the sum of such Discount
Amounts from the date of Default or Event of Default at the rate or rates
specified in the applicable Loan Documents.
9.12 Representations and Warranties. Borrowers and Guarantors, jointly
and severally, hereby represent and warrant to CapitalSource as follows: (a)
Organization. As of the date hereof, each Borrower and Guarantor is duly
organized, validly existing, and in good standing under the laws of the state in
which it was established and in every other jurisdiction in which such Borrower
or Guarantor conducts business; (b) Authority. The execution, delivery, and
performance by each Borrower and Guarantor of this Second Master Modification
Agreement and all documents and instruments executed by each Borrower and
Guarantor contemporaneously herewith has been duly authorized by all necessary
corporate action by each Borrower and Guarantor and does not and will not (i)
violate any provision of the certificate or articles of incorporation, bylaws,
or any agreement, statute, ordinance, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect to which such
Borrower and Guarantor is a party or is subject; (ii) result in, or require the
creation or imposition of, any lien upon or with respect to any asset of such
Borrower or Guarantor other than liens in favor of CapitalSource; or (iii)
result in a breach of, or constitute a default by such Borrower or Guarantor
under, any indenture, loan, or credit agreement or any other contract,
agreement, document, instrument, or certificate to which such Borrower or
Guarantor is a party or by which each of them or any of their assets are bound
or affected; (c) Approval. No approval, authorization, order, license, permit,
franchise, or consent of, or registration, declaration, qualification, or filing
with, any governmental authority or other person, including, without limitation,
each applicable governmental authority, and the applicable condominium owners'
associations, is required in connection with the execution, delivery, and
performance by Borrowers or Guarantors of the Loans, as modified hereby; (d)
Taxes. Each of the Borrowers severally represents and warrants that: (a) it has
paid in full all ad valorem taxes and other taxes and assessments levied against
each Resort owned by such Borrower, and each of the Borrowers knows of no basis
for any additional taxes or assessments against any Resort; and (b) it has filed
all tax returns required to have been filed by it and has paid or will pay,
prior to delinquency, all taxes shown to be due and payable on such returns,
including interest and penalties, and all other taxes that are payable by such
Borrower.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 43
EXHIBIT 10.1
To the best of Borrowers' knowledge after good faith diligent inquiry, no tax
audit is pending or threatened with respect to any Borrower or any Guarantor or
against any Resort;
(e) Loan Documents. Attached hereto as Exhibit "F" is a listing of all
Loan Documents by and between CapitalSource, Borrowers and Guarantors following
the assignment of the Loans from CSFB to CapitalSource;
(f) Additional Loans. Exhibit "A" attached hereto represents a true and
complete listing of all of the Additional Loans and, as of the Second Master
Modification Closing Date, there are no other loans made by third party lenders
to any Borrower having an outstanding principal balance in excess of $250,000;
(g) Escrow Deposits. Attached hereto as Exhibit "G" is a listing of all
escrow agreements with third parties executed in connection with any of the
Loans, or in connection with the execution of any of the Loan Documents, which
are currently in existence, along with the amount(s), if any, of escrow deposits
outstanding related to each such escrow agreement;
(h) Liens. Borrowers and Guarantors represent and warrant that the Loan
Documents, as modified herein, constitute valid and binding liens and security
interests encumbering the Collateral, as more particularly described in each
Loan Document;
(i) Representations and Warranties. The representations and warranties
contained in the Loan Documents, as each may have been amended hereby, and any
other Loan Document are true and correct on and as of the date hereof and on and
as of the date of execution hereof as though made on and as of each such date;
(j) Event of Default. No Default or Event of Default under any of the
Loan Documents, as amended hereby, has occurred and is continuing, except as set
forth on Exhibit "H" attached hereto;
(k) Compliance With Covenants. Borrowers and Guarantors are in full
compliance with all covenants and agreements contained in the Loan Documents, as
amended hereby;
(l) Paid Off Loans. Attached hereto as Exhibit "K" is a true and
accurate list of all loans made by CSFB to any of Borrowers now or previously
affecting any portion of the Collateral and Borrower hereby represents and
warrants to CapitalSource that all such loans have been paid in full and all
collateral therefor released by CSFB and CSFB no longer has any obligations to
advance any amounts to any Borrower thereunder;
(m) Warrants. Attached hereto as Exhibit "L" is a true and accurate
list of all Warrants to purchase common stock of EFI currently granted to CSFB;
(n) Bridge Loan Collateral. Attached hereto as Exhibit "M" is a true,
accurate and complete listing of all collateral securing the Bridge Loan, as of
the Second Master Modification Closing Date, including but not limited to (i)
the outstanding principal balance of each of the Applicable Underlying Loans as
of the Second Master Modification Closing Date, (ii) the number of unsold units
of each resort securing each Applicable
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 44
EXHIBIT 10.1
Underlying Loan as of the Second Master Modification Closing Date, (iii) a
listing of all other security securing the Bridge Loan (i.e. - warrants granted
to CSFB, pledged assets of the Company, membership interests, stock pledges,
etc.), and such schedule accurately states the information contained therein;
(o) St. Thomas Mortgage. RFI hereby represents to CapitalSource that
RFI has no interest in, right to or claim as a secured party, lender or holder
of any security interest in the Loan Documents listed in Exhibit "F" attached
hereto or the Collateral encumbered thereby including, specifically, the St.
Thomas Mortgage;
(p) Homeowner's Associations. Attached hereto as Exhibit "E" is a true,
complete and accurate list of all of the Homeowner's Associations established in
respect of any of the Resorts or Collateral; and
(q) Litigation. Other than as set forth on Exhibit "I" attached hereto,
no litigation, investigation or proceeding before or by any arbitrator or
governmental body having jurisdiction over any Borrower or any Guarantor shall
be continuing or threatened against any Borrower, any Guarantor or against the
officers or directors of any Borrower or Guarantor
(i) in connection with the Loan Documents or any of the transactions
contemplated thereby and which, in the reasonable opinion of CapitalSource, is
deemed material or (ii) which could, in the reasonable opinion of CapitalSource,
have a Material Adverse Effect (as defined below).
9.13 Reporting Requirements. Notwithstanding any term, provision or
condition of the Loan Documents, for so long as any indebtedness and obligations
of Borrowers and Guarantors on any of the Loans remain outstanding or
unsatisfied and so long as no Borrower or Guarantor is released in writing from
said reporting obligation CapitalSource, Borrowers and Guarantors, as
applicable, shall furnish (or cause to be furnished, as the case may be) to
CapitalSource in each case certified in writing by the reporting party as true
and correct, the following:
(a) Monthly Financial Reports. As soon as available, and in any event
no later than twenty-five (25) days following the end of each calendar month,
unaudited statements of income and expenses of each Borrower and each Guarantor
for the month in question, all in such detail and scope as may be reasonably
required by CapitalSource, prepared in accordance with GAAP and on a basis
consistent with prior accounting periods, together with a one page management
summary as applicable. All financing statements provided under the terms hereof
shall be prepared on a consolidated basis, as applicable. Each monthly financial
statement of each Borrower and Guarantor shall be certified as true and correct
by such Borrowers' or Guarantors' chief financial officer, as appropriate.
(b) Annual Consolidated Audited Financial Reports. As soon as available
and in any event within one hundred twenty (120) days after the end of each of
calendar year or other fiscal year as may be applicable with respect to any
Borrower or any Guarantor (a "Fiscal Year"), statements of income and expense
and balance sheets of Borrowers and Guarantors dated as of the end of
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 45
EXHIBIT 10.1
such Fiscal Year, prepared on a consolidated basis, all in such detail and scope
as may be reasonably required by CapitalSource together with a one-page
management summary of each Borrower and each Guarantor, as applicable. Each
consolidated annual financial statement shall be prepared and audited by Firley
Moran Freer and Eassa P.C., or a national independent certified public
accounting firm acceptable to CapitalSource in accordance with GAAP and on a
basis consistent with prior accounting periods, and shall be certified by such
Borrowers and Guarantors to be true, correct and complete.
(c) Annual Certified Financial Reports. As soon as available and in any
event within one hundred twenty (120) days after the end of each of calendar
year or other fiscal year as may be applicable with respect to any Borrower or
any Guarantor (a "Fiscal Year"), statements of income and expense of each
Borrower and each Guarantor for the annual period ended as of the end of such
Fiscal Year, and balance sheets of each Borrower and each Guarantor as of the
end of such Fiscal Year, all in such detail and scope as may be reasonably
required by CapitalSource, prepared in accordance with GAAP and on a basis
consistent with prior accounting periods, together with a one-page management
summary of each Borrower and each Guarantor, as applicable. Each annual
financial statement of each Borrower and each Guarantor shall be certified by
such Borrower and such Guarantor to be true, correct and complete.
(d) Collateral Reports. As part of its monthly report package submitted
to CapitalSource in connection with any Loan, within twenty-five (25) days after
the end of each month and within ninety (90) days after the end of each Fiscal
Year, each Borrower shall deliver to CapitalSource, monthly and annually, as
appropriate, a listing of the then outstanding balance of each Loan, together
with the payment and income status of each Loan and such other information
concerning each Loan as CapitalSource may specify.
(e) Litigation or Investigations. Within ten (10) days after the end of
each month a statement describing any litigation, investigation, proceedings or
claims pending or to each Borrower's or Guarantor's knowledge, as applicable,
threatened against each Borrower and each Guarantor that could have a material
adverse effect on Borrower's ability to perform its obligations under the Loan
Documents (to the extent not previously disclosed to CapitalSource unless there
has been a material change in the status of such litigation, investigations,
proceedings or claims previously disclosed to CapitalSource, in which case the
previous disclosure shall be updated accordingly).
(f) Quarterly Meeting or Teleconference. Within fifteen (15) days after
the end of each quarter (or on such other date specified by CapitalSource) a
meeting or teleconference with senior management any of the Borrowers requested
by CapitalSource reviewing such Borrower's operations and activities with
CapitalSource.
(g) Homeowners' Association Annual Financial Reports. As soon as
available and in any event within one hundred twenty (120) days after the end of
each of calendar year or other fiscal year (a "Fiscal Year") as may be
applicable with respect to any homeowner's association associated with a Resort
as listed on Exhibit "E" attached hereto (each a "Homeowners' Association"),
statements of income and expense of each Homeowners' Association for the annual
period ended as of the end of such Fiscal Year, and balance sheets of each
Homeowners' Association as of the end
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 46
EXHIBIT 10.1
of such Fiscal Year, all in such detail and scope as may be reasonably required
by CapitalSource, prepared on a basis consistent with prior accounting periods,
together with a one-page management summary for each Homeowners' Association.
Each annual financial statement of each Homeowners' Association shall be
certified by such Homeowners' Association to be true, correct and complete, and
shall otherwise be in form acceptable to CapitalSource.
(h) Monthly Paydown Report. On or before the 25th of each calendar
month, Borrowers shall provide both to CapitalSource and to CapitalSource's
servicing agent(s) for the Loans a sales report detailing the sales of all
Intervals and Units at or with respect to each of the Resorts for the period
covered thereby, together with all Interval or Unit sales made by Borrowers that
have been cancelled during such period. Such reports shall also indicate the
number of Intervals or Units that remain encumbered by the applicable mortgage
or deed of trust in favor of CapitalSource and the number of Intervals or Units
for which partial releases from such mortgages or deeds of trust, if any, have
been recorded during such period and during the term of each Loan. Such reports
shall be certified by each Borrower to be true, correct and complete and
otherwise be in a form approved by CapitalSource.
(i) Officer's Certificate. Each set of annual financial statements or
reports delivered to CapitalSource pursuant to Section 9.13(a) and (b) hereof
shall be accompanied by a certificate of the President or the Chief Financial
Officer of each Borrower and/or Guarantor, as appropriate, setting forth that
the signers have reviewed the relevant terms of this Second Master Modification
Agreement (and all other agreements and exhibits between CapitalSource and the
relevant parties), have made, or caused to be made, under their supervision, a
review of the transactions and conditions of such Borrower and/or Guarantor from
the beginning of the period covered by the financial statements or reports being
delivered therewith to the date of the certificate, and that such review has not
disclosed the existence during such period of any condition or event that
constitutes a Default or Event of Default or, if any such condition or event
existed or exists or will exist, specifying the nature and period of existence
thereof and what action such Borrower and/or Guarantor has taken or proposes to
take with respect thereto.
(j) Collateral Reports. EFI, RFI, the Company and ERC, as part of such
Borrowers' monthly report package previously submitted to CapitalSource in
connection with any Applicable Underlying Loan (as defined in the Bridge Loan
Agreement) that is secured in part by an Inventory Mortgage (as defined in the
Bridge Loan Agreement), within ten (10) days after the end of each month and
within ninety (90) days after the end of each Fiscal Year, Borrower shall
deliver to CapitalSource, monthly and annually, as appropriate, a listing of
each Applicable Underlying Loan, together with the payment and income status of
each Applicable Underlying Loan and such other information concerning each
Applicable Underlying Loan as CapitalSource may specify. (k) Audit Report.
Promptly upon receipt thereof, Borrowers and Guarantors, as applicable, shall
deliver to CapitalSource, one (1) copy of each other report submitted to any
Borrower or any Guarantor by independent public accountants or other Persons
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 47
EXHIBIT 10.1
(as defined in the Loan Documents for such Borrower or Guarantor) in connection
with any annual, interim, or special audit made by them of the books of such
Borrower or any Guarantor.
(l) Notice of Default or Event of Default. Promptly upon becoming aware
of the existence of any material condition or event that constitutes a Default
or an Event of Default hereunder or under the Bridge Loan Documents, or with
respect to the Bridge Loan a default or event of default pursuant to any of the
Applicable Underlying Loan Documents (as defined in the Bridge Loan Agreement),
Borrowers and Guarantors, as applicable, shall deliver to CapitalSource, a
written notice specifying the nature and period of existence thereof and what
action such Borrower or Guarantor is taking or proposes to take with respect
thereto. (m) Notice of Claimed Default. Promptly upon becoming aware that holder
of any material obligation or of any evidence of material indebtedness of any
Borrower or any Guarantor, or with respect to EFI, RFI, the Company or ERC, any
Applicable Underlying Borrower or Applicable Underlying Guarantor (as such terms
are defined in the Bridge Loan Agreement), has given notice or taken any other
action with respect to a claimed default or event of default with respect
thereto, a written notice specifying the notice given or action taken by such
holder and the nature of the claimed default or event of default and what action
such Borrower or such Guarantor is taking or proposes to take with respect
thereto.
(n) Material Adverse Developments. Promptly upon becoming aware of any
information, other than information relating to any litigation, investigation,
proceedings or claims pending or threatened against any Borrower or any
Guarantor, that could materially and adversely affect such Borrower or such
Guarantor, and with respect to EFI, RFI, the Company or ERC, which could
materially adversely affect any Applicable Underlying Borrower, any Applicable
Underlying Guarantor, any Applicable Resort, or any Applicable Underlying Loan
Collateral (as such terms are defined in the Bridge Loan Agreement), or all or
any portion of the Collateral, including any Resort, including but not limited
to the ability of such Borrower or such Guarantor to perform its obligations
under the Loan Documents, such Borrower or such Guarantor shall provide
CapitalSource with telephonic notice thereof, immediately followed by telecopied
and mailed written confirmation, specifying the nature of such development or
information and the anticipated effect thereof.
(o) Hazardous Materials. Borrowers shall promptly notify CapitalSource
of any change in the nature or extent of any Hazardous Materials (as may be
defined in the Loan Document applicable to such Borrowers) maintained on or
under any of the Resorts or used in connection therewith, and will deliver to
CapitalSource copies of any citation, order, notice, or other governmental or
other communication received with respect to any Hazardous Material or other
environmentally regulated substances affecting such Resort. CapitalSource shall
have the right to require Borrowers to perform on a periodic basis (at
Borrowers' expense) an environmental audit of each of such Resort and, if deemed
reasonably necessary by CapitalSource, an environmental
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 48
EXHIBIT 10.1
risk assessment, each of which must be satisfactory to CapitalSource, in its
sole discretion. Each such audit and/or risk assessment shall be conducted by a
licensed environmental consultant.
(p) Other Information. Each Borrower and each Guarantor agree to
promptly deliver to CapitalSource any other available information related to any
Loan, or any Collateral for any Loan as CapitalSource may in good faith request.
9.14 Conditions to Effectiveness. The effectiveness of this Second
Master Modification Agreement is subject to the satisfaction of the following
conditions precedent in a manner satisfactory to CapitalSource, unless
specifically waived in writing by CapitalSource:
(a) CapitalSource shall have received this Second Master Modification
Agreement, duly executed by Borrowers and Guarantors.
(b) The representations and warranties contained herein and in all of
the Loan Documents, as each may be amended hereby, or in connection herewith,
shall be true and correct as of the date hereof, as if made on the date hereof.
(c) No Default or Event of Default shall have occurred and be
continuing.
(d) All corporate proceedings taken in connection with the transactions
contemplated by this Second Master Modification Agreement and all documents,
instruments and other legal matters incident thereto shall be satisfactory to
CapitalSource.
(e) CapitalSource shall have received a modification agreement related
to the $16,500,000 Additional Loans from Bank of America to Equivest Finance,
Inc., executed by Bank of America, N.A., Equivest Finance, Inc., Peppertree
Acquisition Corp., and Peppertree Acquisition Corp. II, in form and substance
acceptable to CapitalSource evidencing an extension to the maturity date thereof
for at least two (2) years from the previous maturity date thereof.
(f) CapitalSource shall have received all fees and expenses payable to
CapitalSource pursuant to Section 9.4 hereof.
(g) CapitalSource shall have received in form and substance
satisfactory to CapitalSource, certified copies of Borrowers' casualty insurance
policies, together with loss payable endorsements on CapitalSource's standard
form of loss payee endorsement naming CapitalSource as loss payee, and certified
copies of Borrowers' liability insurance policies, together with endorsements
naming CapitalSource as a co-insured.
(h) Since May 20, 2001, there shall not have occurred any event,
condition or state of facts which could reasonably be expected to have a
Material Adverse Effect and (ii) no representations made or information supplied
to CapitalSource shall have been proven to be inaccurate or misleading in any
material respect.
(i) CapitalSource shall have received (i) the executed amendment to the
Ocean City Mortgage, the Avenue Plaza Mortgage, the St. Thomas Mortgage, the DC
Mortgage, and the Riverside Mortgage, (ii) execution copies of all A&D
Termination Documents,
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 49
EXHIBIT 10.1
and (iii) execution copies of all other documents executed in connection
herewith, all in form and substance satisfactory to CapitalSource.
(j) For each Borrower or Guarantor which is a corporation,
CapitalSource shall have received a copy of the resolutions of such Borrower
and/or Guarantor in form and substance reasonably satisfactory to CapitalSource,
of the Board of Directors of each Borrower and Guarantor authorizing (i) the
execution, delivery and performance of this Second Master Modification
Agreement, the amendment to the mortgages and deeds of trust contemplated
herein, and any related agreements (collectively the "Documents") and (ii) the
granting by each Borrower and Guarantor of the security interests in and liens
upon the Collateral in each case certified by the Secretary or an Assistant
Secretary of each Borrower and Guarantor as of the Second Master Modification
Closing Date; and, such certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded as of the date
of such certificate.
(k) For each Borrower or Guarantor which is a corporation,
CapitalSource shall have received a copy of the Articles or Certificate of
Incorporation of such Borrower and/or Guarantor, and all amendments thereto,
certified by the Secretary of State or other appropriate official of its
jurisdiction of incorporation together with copies of the By-Laws of such
Borrower and Guarantor and all agreements of such Borrower's and Guarantor's
shareholders certified as accurate and complete by the Secretary of such
Borrower and Guarantor.
(l) CapitalSource shall have received good standing certificates for
each Borrower and Guarantor dated not more than 30 days prior to the Second
Master Modification Closing Date, issued by the Secretary of State or other
appropriate official of Borrower's and Guarantor's jurisdiction of incorporation
and each jurisdiction where the conduct of such Borrower's and Guarantor's
business activities or the ownership of its properties necessitates
qualification.
(m) For each Borrower or Guarantor who is a limited liability company,
CapitalSource shall have received a true and complete copy of an executed copy
of Borrower's or Guarantor's regulations/operating agreement, and all amendments
thereto, accompanied by a certificate dated the closing date, executed by each
member of Borrower, or Guarantor that (i) such copy is correct and complete;
(ii) the regulations/operating agreement is in full force and effect; (iii) the
regulations/operating agreement has not been dissolved or terminated and no
proceeding for dissolution or termination is contemplated; and (iv) no default
or event which with the lapse of time or the giving of notice or both could
become a default has occurred under the regulations/operating agreement.
(n) For each Borrower or Guarantor who is a limited liability company,
CapitalSource shall have received (i) the written consent of each member to the
extent required by the regulations/operating agreement approving the execution
of this Second Master Modification Agreement and the granting of the security
interests granted herein and in the loan Documents, authorizing the transactions
contemplated hereby and, if, pursuant to permission therefor in the operating
agreement, this Second Master Modification Agreement and the documents executed
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 50
EXHIBIT 10.1
in connection herewith are to be executed on behalf of such Borrower or
Guarantor by less than all of the members, specifying by name each member
authorized to so execute this Second Master Modification Agreement and the
documents executed in connection herewith and whether and to what extent
execution by more than one is required, (ii) a copy of such Borrower's or
Guarantor's certificate of formation and all amendments thereto, accompanied by
certificates that such copy is correct and complete which have been issued by
(A) the appropriate governmental official of the jurisdiction of formation of
Borrower or Guarantor and (B) the manager of Borrower or Guarantor as of the
Second Master Modification Closing Date.
(o) CapitalSource shall have received all such other documents
requested by CapitalSource deemed by it to be necessary to effectuate the
transfer of the Loans, Loan Documents and liens and security interests in the
Collateral from CSFB, including any assignments, financing statements, pledges,
stock powers, issuance of new stock certificates, or other related documents.
9.15 Additional Acknowledgements. With the execution of this Second
Master Modification Agreement:
(a) Borrowers and Guarantors do hereby acknowledge, confirm and agree
to the prompt and immediate payment of all sums due CapitalSource from Borrowers
and Guarantors and of all indebtedness of Borrowers and Guarantors to
CapitalSource, and to the immediate performance and prompt compliance by
Borrowers and Guarantors of all obligations of Borrowers and Guarantors to
CapitalSource.
(b) Borrowers and Guarantors do hereby waive, discharge and release
forever any and all existing claims, counterclaims, defenses, demands, and
rights of set-off that it or they may presently have or may previously have had
against CSFB or CapitalSource with respect to or arising in connection with any
of the Loans or with regard to Loan Documents as modified hereby, or which may
affect the validity or enforceability by CSFB or CapitalSource of its various
rights and remedies under the Loan Documents, and each further acknowledges and
agrees that the waiver, discharge and release herein contained represent an
essential part of the consideration bargained for and received by CapitalSource
in consideration of its agreements hereunder.
(c) As additional consideration for CapitalSource's agreements
hereunder, each Borrower does hereby reconfirm and does re-grant to
CapitalSource a security interest in the Collateral, as security for of the
Loans under the Loan Documents.
(d) The terms, conditions, covenants, and agreements hereof shall be
binding upon the heirs, personal representatives, successors, and assigns of the
parties hereto and shall inure to the benefit of the successors and assigns of
CapitalSource. (e) Borrowers hereby acknowledge that (i) under no circumstances
is CapitalSource obligated to make additional financing available, for any
purpose, (ii) Borrowers are not entitled to any future advances from
CapitalSource under any of
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 51
EXHIBIT 10.1
the Loans, and (iii) each Loan has been fully funded and CapitalSource has no
obligation or commitment to advance any additional funds to any Borrower.
(f) THIS SECOND MASTER MODIFICATION AGREEMENT SHALL BE GOVERNED BY AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) Whenever the singular number is used herein, the same shall include
the plural, and the masculine and/or feminine and the natural and/or artificial
persons shall include all genders, whenever and wherever the context so requires
or admits.
(h) CapitalSource may, at any time and from time to time, waive any one
or more of the provisions of this Second Master Modification Agreement, but any
such waiver shall be deemed to be made in pursuance of this Second Master
Modification Agreement and not in modification thereof, and any such waiver in
any instance or under any particular circumstances shall not be considered a
waiver of such condition in any other instance or other circumstances.
(i) Any waiver or modification of the terms of this Second Master
Modification Agreement by CapitalSource shall be in writing and shall be signed
by an authorized officer of CapitalSource. No delay or omission of the part of
CapitalSource in exercising any right hereunder shall operate as a waiver of
that right or of any other right thereunder or hereunder.
(j) Time is of the essence under this Second Master Modification
Agreement with respect to each Borrower's and Guarantor's performance hereunder.
(k) In the event any one or more of the provisions contained herein
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall, at the option of
the CapitalSource, not affect any provisions herein, but this Second Master
Modification Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
(l) In the event governmental entities, agencies or departments
determine that this Second Master Modification Agreement requires that
additional documentary or intangible stamps taxes are necessary, Borrowers
hereby agree to immediately pay such taxes. Borrowers shall further pay any
interest or penalties which may accrue due to the requirement of additional
documentary or intangible stamp taxes and shall indemnify, defend and save and
hold harmless CapitalSource from and against any and all claims or liabilities
arising from the requirements of such additional taxes. Failure on the part of
Borrowers to pay these additional taxes when due shall constitute an Event of
Default hereunder and under the Loan Documents.
(m) Borrowers hereby acknowledge, confirm and agree that the
consideration that Borrowers are receiving from CapitalSource under this Second
Master Modification Agreement constitutes reasonably equivalent value and
valuable consideration in exchange for the consideration that CapitalSource is
receiving from Borrowers under this Second Master Modification Agreement.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 52
EXHIBIT 10.1
(n) Borrowers do hereby acknowledge, confirm and agree that
CapitalSource is proceeding in good faith and are Borrowers receiving the
consideration granted to CapitalSource hereunder for value and in good faith.
(o) Borrowers and Guarantors do hereby acknowledge, confirm and agree
that CapitalSource reserves all rights and remedies under the Loan Documents and
this Second Master Modification Agreement and as provided by applicable state
and federal law.
9.16 Ratification by Borrowers and Guarantors.
(a) By the execution of this Second Master Modification Agreement in
the spaces provided below, each of Borrowers agrees to the terms, provisions,
and conditions set forth herein and acknowledges that except as expressly
provided herein, all documents and instruments (including all documents listed
on Exhibit "F" attached hereto) to which such Borrower is a party, that
evidence, secure, or otherwise pertain to the Loans, as previously amended or
modified, shall remain legally binding upon, and fully enforceable by
CapitalSource against each of the Borrowers.
(b) By the execution of this Second Master Modification Agreement in
the spaces provided below, each Guarantor hereby: (a) acknowledges the execution
of, and consents to, the terms and conditions of this Second Master Modification
Agreement; (b) reaffirms and confirms its obligations, as applicable, under the
Ocean City Guaranty, the Avenue Plaza Guaranty, the St. Thomas Guaranty, and the
Riverside Guaranty (collectively the "Guaranties") and all other documents
listed on Exhibit "F" attached hereto to which such Guarantor is a party, each
made by the applicable Guarantor in favor of CapitalSource and acknowledges,
confirms and agrees that Borrowers' obligations and indebtedness under, and as
defined in, each of the Guaranties include all now existing and hereafter
arising obligations and indebtedness of Borrowers to CapitalSource under, and in
the Loan Documents, as amended by the Second Master Modification Agreement,
except as limited by the terms of the Guaranties; (c) acknowledges that it has
no defense, counterclaim, set-off or any other claim to diminish its liability
under the Guaranties; and (d) acknowledges that its consent is not required to
the effectiveness of the Second Master Modification Agreement or any future
amendment, modification, forbearance or other action with respect to the Loans,
or any of the other Loan Documents.
9.17 Notices. Notwithstanding any other provision contained in any Loan
Document, any notice or other communication required or permitted to be given
under any Loan Document shall be in writing addressed to the respective party as
set forth below and may be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 3:00 p.m.,
Washington, D.C. local time, on a business day; provided that a hard copy of
such notice is also sent pursuant to (c) or (d) below; (c) if by overnight
courier, on the first business day after delivery to the courier; or (d) if by
U.S. Mail, certified or registered mail, return receipt requested on the fourth
(4th) day after deposit in the mail postage prepaid.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 53
EXHIBIT 10.1
Notices to EFI: Equivest Finance, Inc.
100 Northfield Street
Greenwich, Connecticut 06830
Attn: Richard Breeden
Telecopy: (401) 846-3888
Notices to RFI: Equivest Capital, Inc.
Two Clinton Square
Syracuse, New York 13202
Attn: President
Telecopy: (315)422-9477
Notices to all Borrowers and Guarantors:
c/o Equivest Finance, Inc.
115 Long Wharf
P. O. Box 2000
Newport, Rhode Island 02840
Attn: Richard Winkler
Telecopy: (401) 846-3888
Notices to CapitalSource
and CapitalSource Holdings: CapitalSource Finance LLC
1133 Connecticut Avenue, N.W.
Suite 310
Washington, D.C. 20036
Attn: Loan Management Structured
Finance Group
Telecopy: (202) 862-4990
With a copy to:
Patton Boggs LLP
2001 Ross Avenue, Suite 3000
Dallas, Texas 75201
Attn: James C. Chadwick, Esq.
Telecopy: (214) 758-1550
9.18 Protection of Collateral; Reimbursement. All original Loan
Documents shall be delivered, at Borrowers' expense, to CapitalSource at its
address as set forth below and, except as otherwise expressly provided herein to
the contrary, held in CapitalSource's possession, custody, and control until all
of the indebtedness owed to CapitalSource by Borrowers is paid in full and all
of Borrowers' obligations under the Loan Documents have been fully satisfied.
Alternatively, CapitalSource, in its sole discretion, may elect for Custodian to
maintain possession, custody, and control of certain Collateral and all such
documents and instruments during such period of time. The Loan Documents
delivered to CapitalSource or Custodian (whether in connection with the
execution of this Second Master Modification Agreement, or delivered from CSFB
in connection with the Loan Sale Agreement) as described above shall be
segregated by CapitalSource or Custodian, as the case may be, and stored in a
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 54
EXHIBIT 10.1
secure, fire-resistant filing cabinet, access to which is limited in a
commercially reasonable manner. Borrowers and Guarantors agree that such storage
is and shall be deemed to constitute reasonable care by CapitalSource with
respect to such Loan Documents. Except to the extent expressly included in the
Custodian's fee as set forth in the Custodial Agreement, all insurance and other
expenses of protecting the Loan Documents, including, without limitation,
storing, warehousing, insuring, handling, maintaining, and shipping the Loan
Documents, and any and all excise, property, intangible, sales, and use taxes
imposed by any state, federal, or local governmental authority on any of the
Loan Documents or in respect of the sale thereof shall be paid by Borrowers,
jointly and severally. Any and all other amounts for which Borrowers may become
liable hereunder and all costs and expenses (including attorneys' and
paralegals' fees, legal expenses, and court costs) that CapitalSource may incur
in enforcing or protecting its security interest or lien on, or rights and
interest in, the Collateral or any of its rights or remedies under this Second
Master Modification Agreement or any other Loan Document or in respect to any of
the transactions to be had hereunder or thereunder, until paid by Borrowers to
CapitalSource with interest at the applicable default rate of interest (however
defined in the applicable Loan Documents), shall be included among the
indebtedness owed by Borrowers to CapitalSource and, as such, shall be secured
by all of the Collateral. Provided that CapitalSource or Custodian retains the
original Loan Documents delivered to it in a secure, fire-resistant filing
cabinet as provided above, CapitalSource shall not be liable or responsible in
any way for the safekeeping of any of the Loan Documents or for any loss or
damage thereto or for any diminution in the value thereof, or for any act or
default of any warehouseman, carrier, forwarding agency, Custodian, or any other
Person (as defined in the Loan Documents) whomsoever, excluding damages or
losses that occur as a result of CapitalSource's gross negligence or willful
misconduct.
9.19 Financial Covenants.
(a) Minimum Tangible Net Worth. EFI shall maintain a minimum Tangible
Net Worth in excess of (A) the greater of (i) $35,000,000, or (ii) 95% of the
Tangible Assets of EFI minus total liabilities of EFI, determined in accordance
with GAAP and calculated on a consolidated basis as of the end of each calendar
quarter (commencing with September 30, 2001), plus (B) 50% of the positive Net
Income, if any, of EFI for the immediately preceding calendar quarter.
(b) Debt Service Coverage Test. EFI shall maintain a Debt Service
Coverage Ratio of not less than 1.50 to 1.00, measured as of the last day of
each calendar quarter.
(c) Leverage Ratio. Neither EFI, individually, nor EFI and the other
Borrowers, determined on a consolidated basis, shall permit the Leverage Ratio
as of the last day of each calendar quarter to exceed 11.0 to 1.0, measured as
of the last day of each calendar quarter.
(d) Minimum Liquidity. EFI, individually, shall maintain not less than
$1,000,000 of Liquid Assets, measured as of the last day of each calendar
quarter.
(e) Solvency. The Borrowers are, and at all times during the term of
the Loans, shall remain Solvent.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 55
EXHIBIT 10.1
9.20 Residual Interest of RFI. Borrowers and CapitalSource acknowledge
that in accordance with Section 8.5 of the First Master Modification Agreement,
and Section 1(e) of the Riverside Absolute Assignment, RFI retained and
currently has a residual interest in the Riverside Loan in an amount equal to
$2,656,712.75 (the "Riverside Residual Interest"). RFI acknowledges that its
right to receive payment of the Riverside Residual Interest and an assignment of
the Riverside Loan Documents is and shall, at all times during the term of the
Loans, be subordinate in all respects to (i) the prior repayment in full to
CapitalSource of the Riverside Loan in accordance with Section 9.3 hereof, and
(ii) the prior payment to CapitalSource of the Pool Loans required under Section
9.6 hereof.
9.21 Events of Default. Notwithstanding any other provisions set forth
in any of the Loan Documents (except for Loan Documents related to the Bridge
Loan), the parties agree the following events of default shall constitute
"Events of Default" under any and all of the Loans (except the Bridge Loan), and
the following "Events of Default" shall supercede and replace all existing
"Defaults" and "Events of Default" set forth in all of the Loan Documents (other
than the Loan Documents related to the Bridge Loan):
(a) Payment Default. If any Borrower fails to make, as and when due,
whether by acceleration or otherwise, any payment or mandatory prepayment of
principal, interest, or other fees or amounts of any and every kind due under
any Loan pursuant to any Loan Document.
(b) Covenant Defaults. If any Borrower fails fully and timely to
perform or observe any non-monetary covenant, agreement, or warranty contained
in any Loan Document, including any covenants set forth in this Second Master
Modification Agreement.
(c) Warranties or Representations. If any statement or representation
made by or on behalf of any Borrower or Guarantor in any Loan Document or in
this Second Master Modification Agreement, or in any document, instrument,
certificate, opinion, or other item furnished pursuant to the Loan Documents or
this Second Master Modification Loan Agreement, is false, misleading, or
incorrect in any material respect as of the date made or reaffirmed.
(d) Enforceability. If (i) any Lien (hereinafter defined) granted by
any Borrower to CapitalSource in connection with any Loan is or becomes invalid
or unenforceable or is not, or ceases to be, a perfected first priority Lien
(except for the Liens related to the Riverside Loan which rights therein are
PARI PASSU with the rights of Home National Bank and Central National Bank &
Trust of Enid, pursuant to that certain Collateral Agency and Intercreditor
Agreement, dated August 23, 2000) in favor of CapitalSource encumbering the
asset which it is intended to encumber, and such Borrower fails to cause such
Lien to become a valid, enforceable, first and prior Lien (other than the Liens
related to the Riverside Loan) in a manner satisfactory to CapitalSource, in its
sole discretion, within ten (10) days after CapitalSource delivers written
notice thereof to such Borrower; or (ii) if any material term, provision, or
condition of any Loan Document becomes invalid or unenforceable by CapitalSource
and its successors and assigns.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 56
EXHIBIT 10.1
(e) Insolvency. If any Borrower or Guarantor becomes insolvent or
otherwise generally unable to pay its debts as and when they become due or
payable.
(f) Involuntary Proceedings. If a case is commenced or a petition is
filed against any Borrower or Guarantor under any Debtor Relief Law (hereinafter
defined), a receiver, conservator, liquidator, or trustee of any Borrower or
Guarantor or of any material asset of any Borrower or Guarantor is appointed by
court order and such order remains in effect for more than forty-five (45) days,
or if any material asset of any Borrower or Guarantor is sequestered by court
order and such order remains in effect for more than forty-five (45) days.
(g) Voluntary Proceedings. If any Borrower or Guarantor voluntarily
seeks, consents to, or acquiesces in the benefit of any provision of any Debtor
Relief Law, whether now or hereafter in effect, consents to the filing of any
petition against it under such law, makes an assignment for the benefit of its
creditors, admits in writing its inability to pay its debts generally as they
become due, or consents to or suffers the appointment of a receiver, trustee,
liquidator, or conservator for it or any part of its assets.
(h) Attachment; Judgment; Tax Liens. Either (i) the issuance, filing,
levy, or seizure against all or any portion of the Collateral of one (1) or more
attachments, injunctions, executions, tax liens, or judgments for the payment of
money cumulatively in excess of $10,000, that is not discharged in full or
stayed within thirty (30) days after such issuance, filing, levy, or seizure, or
(ii) the issuance, filing, levy or seizure against all or any portion of any
assets of any Borrower or Guarantor, of one (1) or more attachments,
injunctions, executions, tax liens, or judgments for the payment of money
cumulatively in excess of $100,000, that is not discharged in full or stayed
within thirty (30) days after such issuance, filing, levy, or seizure.
(i) Going Concern Reference. If any Borrower's or Guarantor's annual
audited financial statements required to be furnished to CapitalSource, make a
"going concern" reference or otherwise question such Borrower's or Guarantor's
continuing viability as a going concern.
(j) Removal of Collateral. If any Borrower conceals, removes,
transfers, conveys, assigns, or permits to be concealed, removed, transferred,
conveyed, or assigned, any of the Collateral in violation of the terms of any
Loan Document or with the intent to hinder, delay, or defraud its creditors or
any of them including, without limitation, CapitalSource.
(k) Other Defaults. If a material default or event of default occurs in
connection with any other loans or financing arrangements that any Borrower or
Guarantor may have with CapitalSource.
(l) Material Adverse Effect. If there occurs any event or condition
that does or could have a Material Adverse Effect on any Borrower or Guarantor
or the Loans.
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 57
EXHIBIT 10.1
(m) Minimum Net Worth Requirement. The failure of EFI or EFI and the
other Borrowers to comply with the Tangible Net Worth Requirement or the
Leverage Ratio covenants set forth in this Second Master Modification Agreement.
(n) Default by Borrowers in Other Agreements. Any default by any
Borrower (i) in the payment of any indebtedness to CapitalSource; (ii) in the
payment or performance of other indebtedness for borrowed money or obligations
in excess of $50,000 secured by all or any portion of the Collateral; or (iii)
in the payment or performance of any other material indebtedness or obligations.
(o) Attachment; Judgment; Tax Liens. The issuance, filing, levy, or
seizure against all or any portion of any Resort (including any Mortgaged Real
Property) of one (1) or more attachments, injunctions, executions, tax liens, or
judgments for the payment of money cumulatively in excess of $25,000, that is
not discharged in full or stayed within sixty (60) days after such issuance,
filing, levy, or seizure.
(p) Applicable Declarations. If any Applicable Declaration or a
timeshare regime created thereby at a Resort is materially amended, restated, or
terminated without CapitalSource's prior written consent.
(q) Transfer of Property. Except for the sale of Intervals and/or Units
in the ordinary course of a Borrower's business in accordance with the terms
hereof and of the other Loan Documents, and except for transfers due to
involuntary condemnation that do not render any Resort useless for its intended
purpose, if any Borrower, without CapitalSource's prior written consent, sells,
conveys, or further encumbers all or any part of its interest in any Resort or
in any of the personalty located thereon or used or intended to be used in
connection therewith. For purposes of this Section, an assignment, sale, or
transfer shall also include the transfer of any stock in a Borrower other than
to an existing shareholder thereof.
(r) Lien Against Resort. Except for the liens and security interests
set forth on Exhibit "J", or as otherwise specifically provided herein to the
contrary, if any Borrower grants any Lien, security interest, or other
encumbrance upon all or any portion of a Resort or all or any portion of the
Collateral other than in favor of CapitalSource, unless approved by
CapitalSource in writing, in its sole and absolute discretion.
(s) Title. If any violation or breach shall occur in any agreement,
covenant, or restriction affecting title to all or any portion of a Resort, any
Mortgaged Real Property, or any Intervals or Units which are encumbered by a
Lien in favor of CapitalSource, including but not limited to any liens set forth
on Exhibit "J", and such violation or breach is not cured within any time frame
allowed hereunder.
(t) Loss of License. The suspension, loss, revocation, or failure to
renew or file for renewal of any legally required registration, approval,
license, permit, or franchise now held or hereafter acquired by a Borrower with
respect to any Resort or the marketing or sale of Intervals thereat or with
respect thereto, or the failure to pay any amount which is necessary for the
continued operation of a Resort in compliance with all
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 58
EXHIBIT 10.1
applicable laws and regulations related thereto, which loss,
revocation, failure to renew or file for renewal, or failure to
pay is not cured within thirty (30) days following such
occurrence.
(u) Suspension of Sales. The issuance of any stay order, cease and
desist order, injunction, temporary restraining order, or other judicial or
nonjudicial sanction limiting or materially affecting any Interval marketing or
sales activities at or with respect to a Resort or the enforcement of
CapitalSource's rights or remedies hereunder or pursuant to any of the other
Loan Documents, which order or sanction is not terminated or dissolved within
thirty (30) days after its issuance.
(v) Legal Opinions. The failure to deliver the legal opinions to
CapitalSource in accordance with the provisions of Section 9.23 of this Second
Master Modification Agreement. References to "Defaults" and "Events of Default"
in any of the Loan Documents (other than Loan Documents related to the Bridge
Loan) shall mean references to all "Events of Default" as documented above. It
is the intent of the parties hereto for this Section 9.21 to supercede any
contrary provisions in any other Loan Documents (other than Loan Documents
related to the Bridge Loan). It is the intent of all parties hereto that any
Event of Default with respect to one or more of the Loans shall constitute an
Event of Default under each of the remaining Loans and Loan Documents, thereby
entitling CapitalSource to exercise any or all legal and equitable rights and
remedies available to CapitalSource, whether pursuant to the Loan Documents or
by operation of law.
9.22 Debt Covenant. CapitalSource acknowledges that the covenants
regarding the limitation on additional Indebtedness set forth in Sections 3.11,
4.9, 5.9 and 6.11 of this Second Master Modification Agreement shall not apply
to any other Loan or Borrower other than the Ocean City Loan, the Riverside
Loan, the Avenue Plaza Loan and the St. Thomas Loan, respectively, as provided
therein.
9.23 Legal Opinions. No later than forty-five (45) days following the
Second Master Modification Closing Date, CapitalSource shall have received
executed legal opinions of Borrowers' and Guarantors' legal counsel in forms
substantially similar to the forms contained in Exhibit "C" attached hereto.
Borrowers and Guarantors hereby authorize and direct such counsel to deliver
such opinions to CapitalSource.
9.24 Waiver of Jury Trial. CAPITALSOURCE, BORROWERS AND GUARANTORS
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT ANY MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS SECOND MASTER MODIFICATION AGREEMENT AND ANY
AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OR
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF
ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR CAPITALSOURCE
ENTERING INTO THIS SECOND MASTER MODIFICATION AGREEMENT. SECOND MASTER LOAN
MODIFICATION AGREEMENT -- Page 59
EXHIBIT 10.1
9.25 Miscellaneous.
(a) No Other Changes. Except as expressly set forth herein, each and
every term, provision, and condition contained in the Loans and related
documents, including all exhibits and schedules thereto and all of
CapitalSource's rights and remedies thereunder, shall remain unchanged and in
full force and effect following the Second Master Modification Closing Date.
(b) Inconsistencies. The terms of this Second Master Modification
Agreement shall control and prevail in the event of any conflict or
inconsistency between any of the Loan Documents and this Second Master
Modification Agreement.
(c) Counterparts. This Second Master Modification Agreement may be
executed in identical counterparts, each of which shall be deemed an original
for any and all purposes and all of which, collectively, shall constitute one
and the same instrument.
(d) Audits. Notwithstanding anything to the contrary set forth in any
Loan Documents, Borrowers shall permit CapitalSource to perform on-site audits
of Borrower's books and records relating to any of the Loans.
9.26 Termination of Provisions. Borrowers and Guarantors acknowledge
and agree that under certain circumstances CapitalSource may require CSFB to
reacquire the Loans and Trust Loans in accordance with a put obligation (the
"Put Option") set forth in the Loan Sale Agreement. Borrowers and Guarantors
acknowledge and agree that if CapitalSource exercises the Put Option under the
Loan Sale Agreement to require CSFB to reacquire the Loans and Trust Loans,
then:
(i) Within 90 days after the exercise by CapitalSource of the Put
Option, (a) CapitalSource shall refund to Borrowers the Commitment Fee and legal
and other closing costs actually paid to CapitalSource by Borrowers in
connection with the transactions contemplated by this Second Master Modification
Agreement and all other costs, fees and excess interest payments actually paid
to CapitalSource by Borrowers (between August __, 2001 and consummation of the
Put Option [the "Interim Period"]) that Borrower would not have otherwise paid
but for the execution of the Second Master Modification Agreement; and (b)
Avenue Plaza, Bluebeard and Castle shall pay to CapitalSource an amount equal to
the sum of the Special Avenue Plaza Advance and the Special St. Thomas Advance,
together with accrued and unpaid interest thereon less any release fees paid and
applied to the unpaid balances of the Special Avenue Plaza Advance and the
Special St. Thomas Advance (or, alternatively, the party having the greater
burden of reimbursement may elect to offset the amount payable against the
amounts payable by the other party; and
(ii) Except with respect to provisions that expressly survive the
termination of this Second Master Modification Agreement, this Second Master
Modification Agreement and all other documents executed in connection herewith
shall terminate, effective from and after the date of reassignment
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 60
EXHIBIT 10.1
of the Loans and Trust Loans to CSFB and (a) CapitalSource shall give credit to
Borrowers for all release fees and other required principal payments under the
Loans made by Borrowers to CapitalSource in the ordinary course; and (b)
CapitalSource shall incur and pay all costs necessary to prepare, record and
effectuate the termination of this Second Master Modification Agreement and all
documents collateral thereto, and to provide Borrower any applicable partial
releases for principal payments made by Borrowers during the Interim Period; and
(iii) From and after such effective date, the terms and provisions of
the Loan Documents shall govern and control as if this Second Master
Modification Agreement had not been executed, except that the obligation of
Avenue Plaza, Bluebeard and Castle to repay the Special Avenue Plaza Advance and
the Special St.Thomas Advance, and interest thereon, and the obligation of
CapitalSource to remit fees and payments per Section 9.26(i)(a) above, shall
survive the termination of this Second Master Modification Agreement. If,
pursuant to the Loan Sale Agreement, CapitalSource elects to receive from CSFB a
cash adjustment to the purchase price paid by CapitalSource for each of the
Loans and Trust Loans, then CapitalSource and Borrowers shall cooperate with one
another in good faith to execute an amendment to this Second Master Modification
Agreement which shall set forth an adjustment to the Initial Discounted
Principal Amount of each of the Loans and the amounts related thereto (such as,
without limitation, the Applicable Principal Balances, Aggregate Loan Amount,
and Exit Fees payable hereunder).
9.27 RELEASE. BORROWERS AND GUARANTORS HEREBY ACKNOWLEDGE THAT EACH
HAVE NO DEFENSE, COUNTERCLAIM, OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY
KIND OR NATURE WHATSOEVER THAT CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY
PART OF ITS LIABILITY TO REPAY THE "OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF
OR DAMAGES OF ANY KIND OR NATURE FROM CAPITALSOURCE. BORROWERS AND GUARANTORS
EACH HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND FOREVER DISCHARGE
CAPITALSOURCE, ITS PREDECESSORS, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF
ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN,
ANTICIPATED OR UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR
CONDITIONAL, AT LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE
THE DATE THIS AMENDMENT IS EXECUTED, WHICH BORROWERS AND GUARANTORS MAY NOW OR
HEREAFTER HAVE AGAINST CAPITALSOURCE, ITS PREDECESSORS, OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER
ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR
OTHERWISE, AND ARISING FROM ANY "LOANS," INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 61
EXHIBIT 10.1
IN EXCESS OF THE HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND
REMEDIES UNDER ANY LOAN DOCUMENT, AND NEGOTIATION FOR AND EXECUTION OF THIS
AMENDMENT.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURES BEGIN ON FOLLOWING PAGE]
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 62
EXHIBIT 10.1
IN WITNESS WHEREOF, the parties hereto have caused this Second Master
Modification Agreement to be duly executed and delivered as of the date first
above written.
EXHIBIT 10.1
BORROWERS:
EQUIVEST FINANCE, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST CAPITAL, INC.
By:_________________________
Name:_______________________
Its:________________________
EASTERN RESORTS COMPANY, LLC
By:_________________________
Name:_______________________
Its:________________________
EASTERN RESORTS CORPORATION
By:_________________________
Name:_______________________
Its:________________________
OCEAN CITY COCONUT MALORIE RESORT, INC.
By:_________________________
Name:_______________________
Its:________________________
BLUEBEARD'S CASTLE, INC.
By:_________________________
Name:_______________________
Its:________________________
AVENUE PLAZA LLC
By:_________________________
Name:_______________________
Its:________________________
CASTLE ACQUISITION, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST WASHINGTON, INC.
By:_________________________
Name:_______________________
Its:________________________
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 63
EXHIBIT 10.1
GUARANTORS:
EQUIVEST FINANCE, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST LOUISIANA, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST ST. THOMAS, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST MARYLAND, INC.
By:_________________________
Name:_______________________
Its:________________________
EQUIVEST TEXAS, INC.
By:_________________________
Name:_______________________
Its:________________________
LENDER:
CAPITALSOURCE FINANCE LLC
By:_________________________
Name:_______________________
Its:________________________
WARRANT HOLDER:
CAPITALSOURCE HOLDINGS LLC
By:_________________________
Name:_______________________
Its:________________________
SECOND MASTER LOAN MODIFICATION AGREEMENT -- Page 64
EXHIBIT 10.1
LIST OF EXHIBITS
Exhibit A Additional Loans
Exhibit B List of Loans and Loan Balances
Exhibit C Form of Legal Opinion
Exhibit D Intentionally Omitted
Exhibit E List of Homeowner's Associations
Exhibit F List of Loan Documents
Exhibit G List of Escrow Agreements
Exhibit H Existing Defaults
Exhibit I Litigation
Exhibit J Existing Liens
Exhibit K List of Prior Loans (Repaid)
Exhibit L List of Warrants
Exhibit M Bridge Loan Collateral
Exhibit N Applicable Balances and Exit Fees
EXHIBIT 10.1
EXHIBIT "A"
ADDITIONAL LOANS
EXHIBIT 10.1
EXHIBIT "B"
LOAN BALANCES
LIST OF LOANS
(BALANCE OUTSTANDING AND ORDER OF PAYOFF)
BALANCE
LOAN AS OF 05/17/01 BALANCE AS OF DETERMINATION DATE
1. BRIDGE 1,794,132 1,494,132.29
2. SPECIAL AVENUE PLAZA ADVANCE 0 0
3. SPECIAL ST. THOMAS ADVANCE 0 0
4. ST THOMAS 11,493,532 11,081,032.12
5. AVENUE PLAZA 11,493,532 12,245,000.00
6. OCEAN CITY 3,315,147 3,039,147.62
7. RIVERSIDE 2,656,713 2,564,012.75
- -------------------------------------------------------------------------------------------------------------------
TOTAL 30,753,056 30,423,324.78
EXHIBIT B - PAGE 1 OF 1
EXHIBIT 10.1
EXHIBIT "C"
FORM LEGAL OPINION
________, 2001
CapitalSource Finance LLC 1133 Connecticut Avenue, N.W.
Suite 310
Washington, D.C. 20036
Ladies and Gentlemen:
This opinion is being delivered in connection with that certain Second
Master Loan Modification Agreement dated as of September 7, 2001 by and among
______________________, a _______________ ("Borrower") and CapitalSource Finance
LLC, a Delaware limited liability company ("Lender") (the "Loan Agreement"). We
have acted as special [State/District] counsel to Borrower in connection with
the preparation, negotiation, execution, delivery and perfection of a real
property lien and personal property security interest granted by Borrower to
Lender, pursuant to the documentation described below. Unless otherwise defined
herein, capitalized terms used in this opinion shall have the meanings given to
those terms in the Loan Agreement.
For the purposes of this opinion, we have reviewed the following
documents.
1. Assignment of [Mortgage/Deed of Trust] and other Loan Documents
("Mortgage Assignment");
2. Mortgage/Deed of Trust ("Mortgage") dated as of _______, 19___
executed by Borrower in favor of ____________;
3. Amendment to [Mortgage/Deed of Trust] ("Mortgage Amendment")
amending that certain [Mortgage/Deed of Trust] (the "Mortgage"); and
4. The UCC-3 Financing Statement (the "Financing Statement") (copy of
execution counterpart attached hereto) for filing in the office of
______________________, covering certain personal property, for filing under the
Uniform Commercial Code as in effect in the State of [State/District] ("UCC").
The documents described above are herein collectively referred to as the "Lien
Documents".
In addition, we have examined such other documents and certificates as
we have deemed necessary or appropriate for the purposes of this opinion. Based
upon the foregoing, we are of the opinion that:
EXHIBIT C - PAGE 1 OF 2
EXHIBIT 10.1
1. Assuming the truth of the warranties contained in the Mortgage, the
Mortgage Assignment and Mortgage Amendment concerning Borrower's title to the
Mortgaged Property (defined below) and the filing and recording of the Mortgage
Assignment and Mortgage Amendment in the real property records of
______________________, the Mortgage, as assigned and amended by the Mortgage
Assignment and Mortgage Amendment, creates a valid assignment and modification
of a lien upon the property subject to the Mortgage (the "Mortgaged Property"),
insofar as such Mortgaged Property constitutes real property, and a valid and
perfected security interest in that portion of the Mortgaged Property
constituting "fixtures" (as defined in [Section 9-313] of the UCC), including,
all proceeds of such fixtures. The Mortgage, as modified by the Mortgage
Assignment and Mortgage Amendment contains provisions that are sufficient to
make available to the Lender remedies typically afforded to holders of mortgage
instruments in [State/District].
2. Except for the filing of the Financing Statement, the Mortgage
Assignment and the Mortgage Amendment, no recordings, registrations or filings
that have not been done are required by the laws of the [State/District of
______] in order to fully establish and perfect liens and security interests in
favor of Lender in the Mortgaged Property owned by Borrower and no other or
additional recording, reregistration or refiling in the [State/District of
______ ] will be required for such purpose except for the timely filing or
continuation statements with respect to the Financing Statement.
3. [OTHER THAN _______________,] No state or local recording tax,
mortgage tax or other fees, taxes or governmental charges are required to be
paid in [State/District] as a result of the execution, delivery, performance,
recordation or filing of any Lien Document or the consummation of the
transactions contemplated therein.
This opinion is rendered to and for the benefit of CapitalSource
Finance LLC, and may be relied upon by its respective affiliates, subsidiaries,
successors, assigns and any participants in any portion of the Loans.
[Firm Name]
EXHIBIT C - PAGE 2 OF 2
EXHIBIT 10.1
EXHIBIT "D"
INTENTIONALLY OMITTED
EXHIBIT 10.1
EXHIBIT "E"
LIST OF HOMEOWNERS' ASSOCIATIONS
EXHIBIT 10.1
EXHIBIT "F"
LIST OF LOAN DOCUMENTS
1. BRIDGE LOAN:
Original Loan Documents:
a. Loan and Security Agreement dated as of August 25, 1998
b. $15,000,000.00 Promissory Note dated August 25, 1998 [SUPERSEDED BY
AMENDED AND RESTATED PROMISSORY NOTE DATED DECEMBER 11 1998] SEE: ITEM
"S" BELOW
c. Collateral Agreements (3):
i. Mountain Lodge Development, Inc. (Pollard Brook), dated January
31,1997
ii. R&B Development (Surfside), dated May 20, 1997
iii. Coventry Park U.S., Inc. (Ocean Gate)
d. Collateral Pledges and Assignments of Note Receivables and Applicable
Mortgages (5), each dated August 24, 1998:
i. Mountain Lodge Development, Inc. (Pollard Brook)
ii. R&B Development (Surfside)
iii. Coventry Park U.S., Inc. (Ocean Gate)
iv. Killarney Country Club Owner's Association (Killarney Country
Club)
v. Old Aghadoe Village Owners Association (Old Aghadoe Village)
e. Promissory Notes (5) of various dates and Allonges dated August 24,
1998:
i. Mountain Lodge Development, Inc. (Pollard Brook)
ii. Killarney Country Club Owner's Association (Killarney Country
Club)
iii. Old Aghadoe Village Owners Association (Old Aghadoe Village)
iv. R&B Development (Surfside)
v. Coventry Park U.S., Inc. (Ocean Gate)
f. Underlying Mortgages (5)
i. Mountain Lodge Development, Inc. (Pollard Brook)
ii. Killarney Country Club Owner's Association (Killarney Country
Club)
iii. Old Aghadoe Village Owners Association (Old Aghadoe Village)
iv. R&B Development (Surfside)
v. Coventry Park U.S., Inc. (Ocean Gate)
g. Title Policies for Underlying Mortgages (5)
EXHIBIT F - PAGE 1 OF 14
EXHIBIT 10.1
h. Participation Agreements governing loans which have been participated
by RFI (if any)
i. Assignment of Underlying Guarantees, dated August 25, 1998
j. Pledge and Security Agreement (membership interests of Eastern Resorts
Company LLC), dated August 25, 1998
k. Pledge Agreement (stock of Eastern Resorts Corporation), dated as of
August 25, 1998
l. UCC-1 Financing Statements - [Multi-State/Multi-Debtor]
m. Security Agreement (assets of Eastern Resorts Corporation and Eastern
Resorts Company LLC), dated August 25, 1998
n. Security Agreement and Collateral Assignment, dated August 25, 1998
o. Custodial Agreement, dated August 25, 1998
p. Contribution Agreement, dated August 25, 1998
Loan Modification Documents:
q. Loan Modification Agreement, dated as of December 11, 1998
r. Side Letter Agreement, dated as of December 11, 1998 (cross default &
other terms)
s. Amended and Restated Promissory Note dated as of December 11, 1998
[SUPERSEDES 8/25/98 NOTE, ITEM "B" ABOVE]
t. Amended and Restated Promissory Note ($15,000,000.00), dated as of
June 11, 1999 [SUPERSEDES 12/11/98 NOTE, ITEM "S." ABOVE; SUPERSEDED
BY 4/20/01 NOTE, ITEM "W." BELOW]
u. Letter Agreements (extending Maturity Date of the Bridge Loan) dated:
i. November 15, 2000
ii. December 21, 2000
iii. January 31, 2001
iv. March 22, 2001
v. March 30, 2001
v. Master Loan Modification Agreement, dated as of April 20, 2001
w. Second Amended and Restated Promissory Note, dated as of April 20,
2001 [SUPERSEDES 6/11/99 NOTE, ITEM "T." ABOVE]
EXHIBIT F - PAGE 2 OF 14
EXHIBIT 10.1
x. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par"), executed by EFI in favor of CSFB, dated April 20,
2001
y. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par plus $0.50"), executed by EFI in favor of CSFB, dated
April 20, 2001
2. BLUEBEARD LOAN:
Original Loan Documents:
a. Loan and Security Agreement, dated as of July 30, 1998
b. Acquisition/Development Promissory Note ($17,000,000.00), dated July
30, 1998 [SUPERSEDED BY 4/20/01 NOTE, ITEM "Y." BELOW]
c. Receivables Promissory Note ($14,000,000.00), dated July 30, 1998
[PAID OFF]
d. Mortgage, Security Agreement, and Assignment of Leases and Rents,
dated July 30, 1998, recorded in Book 50G Page 127 as Document No.
3401 (Office of the Recorder of Deeds for the Judicial District of St.
Thomas and St. John, Territory of the United States Virgin Islands)
e. Collateral Assignment of Construction Contracts, dated July 30, 1998
f. Collateral Assignment of Architect's and Engineer's Agreements and
Plans and Specifications, dated July 30, 1998
g. Collateral Assignment of Certificates, Permits, Licenses, Approvals,
Bonds and Warranties, dated July 30, 1998
h. Collateral Assignment of Borrowers' Rights Under the Applicable
Declarations and Bylaws, dated July 30, 1998
i. Collateral Assignment of Trademarks, Trade Names, Service Marks,
Copyrights, and Other Intellectual Property, dated July 30, 1998
j. UCC-1 Financing Statements filed in Virgin Islands and Florida by
Debtors:
i. Castle Acquisitions, Inc.
ii. Kosmas Caribbean Holdings Corp.
iii. Bluebeard's Castle, Inc.
k. Acquisition/Development Payment Guaranty, dated July 30, 1998
l. Completion Guaranty, dated July 30, 1998
m. Hazardous Materials Indemnity Agreement, dated July 30, 1998
n. Lockbox Agreement, dated July 30, 1998
EXHIBIT F - PAGE 3 OF 14
EXHIBIT 10.1
o. Servicing Agreement, dated July 30, 1998
p. Custodial Agreement, dated July 30, 1998
Loan Modification and Assignment Documents:
q. Loan Assignment Agreement, dated as of September 18, 1998
r. Loan Assumption Agreement, dated as of March 30, 1999
s. Completion Guaranty, dated as of March 30, 1999
t. Acquisition/Development Payment Guaranty, dated as of March 30, 1999
u. Assignment of Underlying Guaranty, dated as of March 30, 1999
v. Mutual Release, dated March 26, 1999
w. Hazardous Materials Indemnity Agreement, dated March 30, 1999
x. Master Loan Modification Agreement, dated as of April 20, 2001
y. Amended and Restated Acquisition/Development Promissory Note
($17,000,000), dated as of April 20, 2001
z. Amended and Restated Acquisition/Development Payment Guaranty, dated
as of April 20, 2001
aa. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par"), executed by EFI in favor of CSFB, dated April 20,
2001
bb. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par plus $0.50"), executed by EFI in favor of CSFB, dated
April 20, 2001
3. A&D LOAN:
Original Loan Documents:
a. Loan and Security Agreement, dated as of November 14, 1997
b. Promissory Note ($30,000,000.00) dated November 14, 1997
[SUPERSEDED BY 4/20/01 NOTE, ITEM "N." BELOW]
c. Guaranty, dated November 14, 1997
d. Subordination Agreement, dated November 14, 1997
e. Lockbox Agreement, dated November 14, 1997
EXHIBIT F - PAGE 4 OF 14
EXHIBIT 10.1
f. Servicing Agreement, dated November 14, 1997
g. Warrant to Purchase Shares of Common Stock of Equivest Finance, Inc.
(250,000 shares), executed by EFI in favor of CSFB, dated November 14,
1997 [SUPERSEDED BY ITEM "H." BELOW]
h. Amended and Restated Warrant to Purchase Common Stock of Equivest
Finance, Inc. (125,000 shares), executed by EFI in favor of CSFB,
dated November 14, 1997 [SUPERSEDES 5.G.]
i. Registration Rights Agreement, dated November 14, 1997 (re: Amended
and Restated Warrant to Purchase Common Stock of Equivest Finance,
Inc.)
j. Warrant to Purchase Common Stock of Equivest Finance, Inc. (180,000
shares), executed by EFI in favor of CSFB, dated July 17, 1998
k. Registration Rights Agreement, dated July 17, 1998 (re: Warrant to
Purchase Common Stock of Equivest Finance, Inc.)
Loan Modification and Assignment Documents:
l. Letter Agreements (extending Maturity Date of the A&D Loan) dated: i.
November 15, 2000 ii. December 21, 2000 iii. January 31, 2001 iv.
March 22, 2001 v. March 30, 2001
m. Master Loan Modification Agreement, dated as of April 20, 2001
n. Amended and Restated Promissory Note ($30,000,000), dated as of April
20, 2001
o. Amended and Restated Guaranty, dated as of April 20, 2001
p. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par"), executed by EFI in favor of CSFB, dated April 20,
2001
q. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par plus $0.50"), executed by EFI in favor of CSFB, dated
April 20, 2001
UNDERLYING LOANS:
I. RIVERSIDE LOAN (Riverside Suites Ltd. / Bexar County, Texas)
a. Acquisition and Development Loan Agreement, dated March 12, 1998
b. Acquisition and Development Promissory Note ($6,300,000.00), dated
March 12, 1998 [NOT IN FILES]
EXHIBIT F - PAGE 5 OF 14
EXHIBIT 10.1
c. Deed of Trust and Security Agreement, dated March 12, 1998, recorded
in Vol. 7387 Page 963 (Real Property Records of Bexar County, TX)
d. Guaranty and Subordination Agreement (Innovative Equities, LLC), dated
March 12, 1998
e. Guaranty and Subordination Agreement (Avrum Gaynor), dated March 12,
1998
f. Guaranty and Subordination Agreement (Anne B. Gaynor), dated March 12,
1998
g. Guaranty and Subordination Agreement (Terrence Gomez), dated March 12,
1998
h. Assignment of Underlying Guaranties, dated March 25, 1998
i. Environmental Indemnity, dated March 12, 1998
j. Amendment of Loan Documents for Acquisition and Development Loan and
Hypothecation Loan by Resort Financing, Inc. to Riverside Suites, Ltd.
k. Termination and Release of Collateral Pledge and Assignment of Note
Receivable and RFI/Equivest Texas Security Documents, dated as of
April 20, 2001, recorded in Real Property Records of Bexar County, TX
on June 22, 2001, as Document No. 2001-0105850
l. Assignment of Deed of Trust and Other Loan Documents [by RFI to CSFB],
dated as of April 20, 2001, recorded in Real Property Records of Bexar
County, TX on June 22, 2001, as Document No. 2001-0105851
m. Guaranty Agreement, dated April 20, 2001, by Equivest Finance, Inc.
("EFI") in favor of Credit Suisse First Boston Mortgage Capital LLC
("CSFB")
August, 2000 Loan by RFI to Equivest Texas, Inc.: [ALSO: LOANS BY CNB &
TRUST OF ENID AND HOME NATIONAL BANK]
n. Promissory Note ($4,500,000.00), dated August 21, 2000
o. Deed of Trust and Security Agreement, dated August 23, 2000, recorded
in Real Property Records of Bexar County, TX as Document No.
2000-0144330
EXHIBIT F - PAGE 6 OF 14
EXHIBIT 10.1
p. Assignment of Rents, Leases and Other Benefits, dated August 23, 2000,
recorded in Real Property Records of Bexar County, TX as Document No.
2000-0144333
q. Assignment of Architectural Contract and Plans and Specifications,
dated August 21, 2000, by ETI, as Borrower, in favor of RFI, as Lender
r. Assignment and Subordination of Management Agreement, dated August 21,
2000, by ETI, as Borrower, in favor of RFI, as Lender
s. Environmental Indemnity Agreement, dated August 21, 2000, by ETI, as
Borrower, and EFI as Guarantor (both, ETI and EFI as Indemnitors) in
favor of RFI as Indemnitee
t. Notice and Agreement, dated August, 2000, by ETI, as Borrower, in
favor of RFI, as Lender
u. Unconditional Guarantee of Payment and Performance, dated August ____,
2000, by Equivest Texas, Inc. ("ETI"), in favor of Resort Funding,
Inc. ("RFI")
v. Collateral Agency and Intercreditor Agreement ("Intercreditor
Agreement") dated August 23, 2000, by and among ETI, as Borrower, RFI,
CSFB, Central National Bank and Trust of Enid ("Central National") and
Home National Bank ("Home National")
w. Subordination Agreement dated August 23, 2000, between EFI, EFI Texas
Acquisition, Inc., Home National Bank, Central National Bank & Trust
of Enid, RFI and CSFB
x. Escrow Agreement, dated August 23, 2000, by and among Home National,
Central National, and RFI, as Lenders, ETI, as Borrower, and Lawyers
Title of San Antonio as Agent, as it relates to the Intercreditor
Agreement
II. COCONUT PALMS LOAN
(Ocean Development Group, Inc. / Volusia County, Florida)
a. Acquisition and Development Loan Agreement, dated April 15, 1998, by
and between Ocean Development Group, Inc. ("Ocean"), as Borrower, and
Resort Funding, Inc. ("RFI"), as Lender
b. Mortgage, Assignment of Leases and Rents, and Security Agreement,
dated April 15, 1998, recorded in Book 4306 Page 3269 (Official
Records of Volusia County, FL)
EXHIBIT F - PAGE 7 OF 14
EXHIBIT 10.1
c. Acquisition, Development and Construction Promissory Note
($9,000,000.00), dated April 15, 1998
d. Assignment of Architectural Contract and Plans and Specifications,
dated April 15, 1998, by and between Ocean, as Borrower, and RFI, as
Lender
e. Assignment of Construction Contract, dated April 15, 1998, by and
between Ocean, as Borrower and RFI, as Lender
f. Environmental Indemnity Agreement, dated April 15, 1998, by and
between Ocean, as Indemnitor, and RFI, as Indemnitee
g. Guaranty and Subordination Agreement (Kosmas Group International,
Inc.),
h. Guaranty and Subordination Agreement ("Paul Kosmas"),
i. Guaranty and Subordination Agreement ("Nicholas Kosmas"),Guaranty and
Subordination Agreement ("Harold Gordy"),
j. Assignment of Underlying Guarantees, dated June 22, 1998
k. Assignment of Mortgage and Other Loan Documents, dated April 20, 2001
recorded in Book 4705 Page 4247 (Official Records of Volusia County,
FL)
l. Assignment of Underlying Guaranties, dated April 20, 2001, by RFI, as
Assignor, in favor of Credit Suisse First Boston Mortgage Capital LLC,
as Assignee
III. ELLINGTON AT WACHASAW LOAN (Carmel Development, Inc. / Georgetown Co.,
SC)
a. Acquisition, Development and Construction Promissory Note made by
Carmel Development, Inc. ($2,400,000.00), dated July 17, 1998 [COPY]
b. Mortgage, Assignment of Rents and Leases and Security Agreement, dated
July 17, 1998, recorded in Book 1092 Page 74 (Public Records of
Georgetown County, SC)
c. Acquisition, Development and Construction Loan Escrow Agreement, dated
July 17, 1998, by and among Carmel, as Developer, The Floyd Law Firm,
P.C., as Escrow Agent, and RFI, as Lender
d. Guaranty and Subordination Agreement, dated July 17, 1998, by Glenn's
Bay, Inc. in favor of RFI
e. Environmental Indemnity Agreement, dated July 17, 1998, by and between
Carmel as Indemnitor and RFI as Indemnitee
f. Assignment of Architectural Contract and Plans and Specifications,
dated July 17, 1998, by and between Carmel as Borrower and RFI as
Lender
EXHIBIT F - PAGE 8 OF 14
EXHIBIT 10.1
g. Assignment of Construction Contract, dated July 17, 1998, by and
between Carmel as Borrower and RFI as Lender
h. Assignment of Mortgage and Other Loan Documents, dated April 20, 2001
recorded in Book 1546 Page 305 (Public Records of Georgetown County,
SC)
i. Assignment of Underlying Guaranty, dated April 20, 2001, by and
between RFI as assignor and Credit Suisse First Boston Mortgage
Capital LLC ("CSFB") as assignee
EXHIBIT F - PAGE 9 OF 14
EXHIBIT 10.1
4. DC LOAN [NOTE PAID OFF - MORTGAGE BEING ASSIGNED AS ADDITIONAL COLLATERAL]
Original Loan Documents:
a. Promissory Note ($3,000,000.00) dated June 23, 1998, made by Capital
City Suites, Inc., payable to CSFB [SUPERSEDED BY ITEM "G" BELOW]
b. Purchase Money Deed of Trust, Assignment of Rents and Leases and
Security Agreement, dated June 23, 1998, recorded as Instrument No.
9800049339
c. Loan Disbursement Agreement, dated June 23, 1998
d. Guaranty and Subordination Agreement, dated June 23, 1998
e. Financing Statements, dated June 23, 1998, filed as Instrument No.
9800049340 among the Land Records and as Instrument No. 9800011411
among the Chattel Records of the DC Recorder of Deeds
f. Collateral Assignment of Architect Agreement and Plans
g. Promissory Note ($3,000,000) dated March 26, 1999 [SUPERSEDES ITEM "A"
ABOVE]
EXHIBIT F - PAGE 10 OF 14
EXHIBIT 10.1
5. OCEAN CITY LOAN:
Original Loan Documents:
a. Acquisition and Development Loan Agreement, dated as of October 24,
1997
b. Acquisition and Development Promissory Note ($5,500,000.00) dated
October 24, 1997 [2 NOTES - DIFFERENT INTEREST RATES] [SUPERSEDED BY
3/26/99 NOTE, ITEM "P." BELOW]
c. Allonge [to Acquisition and Development Promissory Note]
d. Mortgage and Security Agreement and UCC-1 Financing Statement dated
October 24, 1997, recorded in Liber 2445 Folio 574 (Worcester County,
Maryland Land Records)
e. Promissory Note ($4,675,000.00), dated October 24, 1997 [made by RFI
and EFI] [SUPERSEDED BY 3/26/99 NOTE, ITEM "P." BELOW]
f. Collateral Assignment of Mortgage and Security Agreement and UCC-1
Financing Statement, dated October 24, 1997, recorded in Liber 2445
Folio 594 (Worcester County, Maryland Land Records)
g. UCC-1 Financing Statements:
i. Resort Financing, Inc. and Equivest Finance, Inc.: MDSDT #
180268152
ii. Ocean City Coconut Malorie Resort: Worcester County Liber 2445
Folio 592
iii. Resort Financing, Inc.: Worcester County Liber 2445 Folio 601
iv. Resort Financing, Inc.: New York Sec. of State #035709 on 2/19/98
iv. Resort Financing, Inc.: Onondaga Co., NY # 001584 and #1585 on
2/18/98
h. Environmental Indemnity, dated October 24, 1997
i. Guaranty and Subordination Agreement (Kosmas Group International,
Inc.), undated
j. Guaranty and Subordination Agreement (Robert Paul Kosmas), dated
October 24, 1997
k. Guaranty and Subordination Agreement (Nicholas G. Kosmas), dated
October 24, 1997
l. Guaranty and Subordination Agreement (Steven P. Kosmas), dated October
24, 1997
m. Guaranty and Subordination Agreement (Harold B. Gordy, Jr.), dated
October 24, 1997
EXHIBIT F - PAGE 11 OF 14
EXHIBIT 10.1
n. Title policy
Loan Modification and Assignment Documents:
o. UCC-3 Amendment: Worcester County Liber 2473 Folio 504
p. Acquisition and Development promissory Note, ($4,521,150) dated March
26, 1999 [SUPERSEDED BY 4/20/01 NOTE, ITEM "U." BELOW]
q. Assignment of Mortgage and Other Loan Documents, dated March 26, 1999
r. Guaranty and Subordination Agreement, dated March 26, 1999, by EFI and
EFI Maryland in favor of CSFB
s. Letter Agreements (extending Maturity Date of the Ocean City Loan)
dated:
i. November 15, 2000
ii. December 21, 2000
iii. January 31, 2001
iv. March 22, 2001
v. March 30, 2001
t. Master Loan Modification Agreement, dated as of April 20, 2001
u. Amended and Restated Acquisition and Development Promissory Note
($14,521,150), dated as of April 20, 2001
v. Amended and Restated Guaranty and Subordination Agreement, dated as of
April 20, 2001
w. Escrow Agreement (if any)
x. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par"), executed by EFI in favor of CSFB, dated April 20,
2001
y. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par plus $0.50"), executed by EFI in favor of CSFB, dated
April 20, 2001
6. AVENUE PLAZA LOAN:
Original Loan Documents:
a. Promissory Note ($19,000,000.00) dated December 19, 1997 [SUPERSEDED
BY 4/20/01 NOTE, ITEM "T." BELOW]
b. Act of Mortgage, Security Agreement, and Assignment of Leases and
Rents dated December 19, 1997, recorded in Orleans Parish, Louisiana
(MIN 447902 and CIN 152019) N.A. No. 98-01491
EXHIBIT F - PAGE 12 OF 14
EXHIBIT 10.1
c. Assignment of Management Agreement, dated December 19, 1997
d. Assignment of Borrower's Rights as Developer Under Declaration and
Bylaws, dated as of December 19, 1997
e. Assignment of Certificates, Permits, Licenses, Approvals, Bonds and
Warranties, dated as of December 19, 1997
f. Guaranty and Subordination Agreement, dated December 19, 1997
g. ADA Completion Agreement and Guaranty, dated as of December 19, 1997
h. Hazardous Materials Indemnity Agreement, dated as of December 19, 1997
i. Agreement Regarding Servitudes, Restrictive Covenants, Non-Disturbance
and Subordination, dated as of December 19, 1997, recorded in Orleans
Parish, Louisiana (N.A. No. 98-01492)
j. UCC-1 Financing Statement, filed in the Mortgage Office of Orleans
Parish, Louisiana on January 6, 1998, as Instrument No. 36-124654
k. Funding Agreement, dated as of December 19, 1997
l. Side-Letter Agreement re First Refusal for Purchase Money Receivables
m. Title policy
Loan Modification and Assignment Documents:
n. Loan Assumption Agreement, dated as of March 26, 1999
o. Mutual Release, dated March 26, 1999, by and among CSFB, Credit Suisse
First Boston Structured Loan Participations, Series 1998-P1
Corporation ("Syndicate Lender"), Kosmas Group International, Inc.,
Kosmas Caribbean Holdings Corporation, Capital City Suites, Inc., and
Steven P. Kosmas
p. Guaranty and Subordination Agreement, dated as of March 26, 1999
q. Hazardous Materials Indemnity Agreement, dated as of March 26, 1999
r. Letter Agreements (extending Maturity Date of the Avenue Plaza Loan)
dated:
i. November 15, 2000
ii. December 21, 2000
iii. January 31, 2001
iv. March 22, 2001
v. March 30, 2001
EXHIBIT F - PAGE 13 OF 14
EXHIBIT 10.1
s. Master Loan Modification Agreement, dated as of April 20, 2001
t. Amended and Restated Promissory Note ($19,000,000), dated as of April
20, 2001
u. Amended and Restated Guaranty and Subordination Agreement, dated as of
April 20, 2001
v. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par"), executed by EFI in favor of CSFB, dated April 20,
2001
w. Warrant to Purchase Common Stock of Equivest Finance, Inc. (200,000
shares - "at par plus $0.50"), executed by EFI in favor of CSFB, dated
April 20, 2001
EXHIBIT F - PAGE 14 OF 14
EXHIBIT 10.1
EXHIBIT "G"
LIST OF ESCROW AGREEMENTS
1. Escrow Agreement, dated August 23, 2000, by and among Home National
Bank, Central National and Trust of Enid, and Resort Funding, Inc. (successor to
the interests of Credit Suisse First Boston Mortgage Capital LLC, successor to
the interests of CapitalSource Finance LLC), as Lenders, Equivest Texas, Inc.,
as Borrower, and Lawyers Title of San Antonio as Escrow Agent, as it relates to
the Collateral Agency and Intercreditor Agreement dated August 23, 2000, by and
among Equivest Texas, Inc., as Borrower, Resort Funding, Inc., Credit Suisse
First Boston Mortgage Capital LLC, successor to the interests of CapitalSource
Finance LLC, Central National Bank and Trust of Enid and Home National Bank.
EXHIBIT G - PAGE 1 OF 1
EXHIBIT 10.1
EXHIBIT "H"
EXISTING DEFAULTS
NONE
EXHIBIT H - PAGE 1 OF 1
EXHIBIT 10.1
EXHIBIT "I"
LITIGATION
EXHIBIT 10.1
EXHIBIT "J"
EXISTING LIENS
1. Second Mortgage in favor of John W. Fager, securing a note in the principal
amount of $500,000 dated October 24, 1997. OCEAN CITY LOAN
2. Deed of Trust, dated August 23, 2000, from Equivest Texas, Inc. to secure
payment of one promissory note in the original principal amount of
$2,000,000, payable to the order of Home National Bank (pari passu with the
Riverside Deed of Trust). RIVERSIDE LOAN
3. Deed of Trust, dated August 23, 2000, from Equivest Texas, Inc. to Central
National Bank and Trust of Enid, to secure Promissory Note in the original
principal amount of $2,000,000 (pari passu with the Riverside Deed of
Trust). RIVERSIDE LOAN
4. Deed of Trust and Security Agreement and UCC-1 Financing Statement dated
March 17, 1998, by Riverside Suites Ltd., as Grantor to Resort Funding,
Inc., as beneficiary. Resort Funding, Inc. entered into Settlement
Agreement with Riverside Suites, and Riverside Suites executed a Deed in
Lieu of Foreclosure in favor of Equivest Texas, Inc. Resort Funding, Inc.
assigned rights under this Deed of Trust to Equivest Texas, Inc. along with
underlying debt, and Equivest Texas, Inc. entered into Subordination
Agreement with Home National Bank, Resort Funding, Inc. and Central
National Bank of Enid. The current title policy does not reference this
Deed of Trust. RIVERSIDE LOAN.
EXHIBIT J - PAGE 1 OF 1
EXHIBIT 10.1
EXHIBIT "K"
LIST OF PRIOR LOANS (REPAID)
1. Receivables Promissory Note in the original principal amount of $14,000,000
dated July 30, 1998 made by Kosmas Caribbean Holdings Corporation,
Bluebeard's Castle, Inc., and Castle Acquisition, Inc. payable to Credit
Suisse First Boston Mortgage Capital LLC, including that certain
Receivables Payment Guaranty dated March 30, 1999 by Equivest Finance, Inc.
and EFI St. Thomas Acquisition, Inc.
2. Hypothecation Loan Agreement from Resort Funding, Inc. to Ocean City
Coconut Malorie Resort, Inc., dated October 24, 1997, and that certain
Hypothecation Promissory Note in the original principal amount of
$22,000,000 dated October 24, 1997 payable to Resort Funding, Inc., each
assigned to Credit Suisse First Boston Mortgage Capital LLC on March 26,
1999.
3. All loans from to Credit Suisse First Boston Mortgage Capital LLC to
Eastern Resorts Company LLC related to the Long Wharf Resort in Newport,
Rhode Island, including that certain $11,500,000 Loan and Security
Agreement, all Hypothecation Loans issued to Eastern Resorts Company LLC in
connection therewith, all promissory notes issued in connection therewith,
and all other loan agreements and documents related thereto.
4. Loan and Security Agreement dated February 11, 1998 by and between Resort
Funding, Inc. as Borrower and Credit Suisse First Boston Mortgage Capital
LLC as Lender with a maximum principal amount of $75,000,000.
5. Loan from Resort Funding, Inc. to Surrey Vacation Resorts, Inc.,
collaterally assigned to Credit Suisse First Boston Mortgage Capital LLC,
located in Missouri.
6. Loan from Resort Funding, Inc. to Tanglewood Resort Properties, Inc.
collaterally assigned to Credit Suisse First Boston Mortgage Capital LLC.
7. Loan from Resort Funding, Inc. to Valley Inn, Inc., collaterally assigned
to Credit Suisse First Boston Mortgage Capital LLC, located in Waterville
Valley, New Hampshire.
8. Loan from Resort Funding, Inc. to Colonial Acres, Inc., collaterally
assigned to Credit Suisse First Boston Mortgage Capital LLC, located in
Yarmouth, Massachusetts.
9. Loan from Resort Funding, Inc. to Clublife Resorts, Inc., collaterally
assigned to Credit Suisse First Boston Mortgage Capital LLC, located in
Destin, Florida.
10. Loan from Resort Funding, Inc. to Sea Oats Resorts, Inc., collaterally
assigned to Credit Suisse First Boston Mortgage Capital LLC, located in
Daytona Beach, Florida.
EXHIBIT K - PAGE 1 OF 2
EXHIBIT 10.1
11. Promissory Note dated March 7, 1994 from Debbie Reynolds Hotel & Casino,
Inc. and Hamlett Production, Ltd. in the original principal amount of
$2,500,000 (secured by first lien mortgage on the Debbie Reynolds Resort in
Las Vegas, Nevada), assigned to Credit Suisse First Boston Mortgage Capital
LLC.
12. Promissory Note dated July 27, 1985 executed by Debbie Reynolds Hotel &
Casino, Inc. payable to the order of Bennett Funding International, Ltd.
d/b/a Resort Funding, Inc. in the original principal amount of $2,865,000
(secured by third lien mortgage on the Debbie Reynolds Resort in Las Vegas,
Nevada), assigned to Credit Suisse First Boston Mortgage Capital LLC.
EXHIBIT K - PAGE 2 OF 2
EXHIBIT 10.1
EXHIBIT "L"
LIST OF WARRANTS
1. Warrant to purchase up to 250,000 shares of common stock from
Equivest Finance, Inc. dated November 14, 1997, as amended and restated by that
certain Amended and Restated Warrant to purchase up to 125,000 shares of common
stock from Equivest Finance, Inc. dated November 14, 1997
(a) Registration Rights Agreement dated November 14, 1997
2. Warrant to purchase up to 180,000 shares of common stock from
Equivest Finance, Inc. dated July 18, 1998 (a) Registration Rights Agreement
dated July 17, 1998 3. Warrant to purchase up to 200,000 shares of common stock
from Equivest Finance, Inc. dated April 20, 2001 (a) Registration Rights
Agreement dated April 20, 2001 4. Warrant to purchase up to 200,000 shares of
common stock from Equivest Finance, Inc. dated April 20, 2001 (a) Registration
Rights Agreement dated April 20, 2001 (Same document as 3(a))
EXHIBIT L - PAGE 1 OF 1
EXHIBIT 10.1
EXHIBIT "M"
DESCRIPTION OF COLLATERAL FOR BRIDGE LOAN
1. Collateral assignment of five (5) mortgage loans originated by Resort
Funding, Inc ("RFI") (some of which have been participated by RFI to
various third party lenders):
(a) Collateral Pledge and Assignment of Note Receivable and Applicable
Mortgage - Mountain Lodge Development, Inc., Grafton County, New
Hampshire Registry of Deeds
(b) Collateral Pledge and Assignment of Note Receivable and Applicable
Mortgage - R&B Development, Inc., Barnstable County, Massachusetts
Registry of Deeds
(c) Collateral Pledge and Assignment of Note Receivable and Applicable
Mortgage - Coventry Park U.S., Inc., St. John's, Florida
(d) Collateral Pledge and Assignment of Note Receivable and Applicable
Mortgage - Killarney County Club Owners Association. [Ireland]
(e) Collateral Pledge and Assignment of Note Receivable and Applicable
Mortgage - Old Killarney Village Owners Association. [Ireland]
2. Pledge of membership interests in Eastern Resorts Company, LLC ("ERC-LLC").
3. Pledge of capital stock of Eastern Resorts Corporation.
4. Security interest in assets of ERC-LLC and ERC.
EXHIBIT M - PAGE 1 OF 1