FOURTH AMENDMENT TO
CONSOLIDATED AMENDED AND RESTATED
LOAN AND SECURITY
AGREEMENT
THIS FOURTH AMENDMENT TO CONSOLIDATED AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (this “
Agreement ”), is made as of April 19, 2010, by
each of the entities listed on Schedule A attached hereto
(each individually a “ Borrower
” and collectively the “ Borrowers
”) in favor of CapitalSource Finance LLC, as administrative,
payment and collateral agent for the benefit of itself and the
other Lenders (as hereinafter defined) (in such capacities, “
Agent ”), CapitalSource Bahamas LLC, a Delaware
limited liability company, as collateral agent for the benefit of
itself, Agent and the other Lenders (as hereinafter defined) (in
such capacity, “ Bahamian Collateral
Agent ”), and the other Lenders (as hereinafter
defined) in respect of, and pursuant to, the terms of that certain
Consolidated Amended and Restated Loan and Security Agreement,
dated as of September 15, 2009, among each Borrower, Agent,
Bahamian Collateral Agent and the lenders party thereto
(individually and collectively, “ Lenders
”), as modified by this Agreement (as it may be modified or
amended to date or hereafter, the “ Loan
Agreement ”). Capitalized terms used
herein, but not expressly defined herein, shall have the meanings
given to such terms in the Loan Agreement.
A. Amendments
to Loan Agreement
1.
Amendment to Section 1.1 . Effective as of the
Effective Date, the definitions of “Borrowing Base,”
“Maximum Loan Amount” and “Net Income
(Loss)” set forth in Section 1.1 are each hereby
amended and restated in their entirety as follows:
“ Borrowing Base —
means (a) at all times from the Fourth Amendment Effective
Date through January 31, 2011, an amount equal to the lesser of (i)
the result of (A) the Maximum Loan Amount less (B) the aggregate
outstanding amount of Protective Advances or (ii) seventy-five
percent (75%) of the Appraised Value of all owned Property
encumbered by a Mortgage from a Borrower in favor of Agent or
Bahamas Collateral Agent, (b) at all times from February 1, 2011
through April 30, 2011, an amount equal to the lesser of (i) the
result of (A) the Maximum Loan Amount less (B) the aggregate
outstanding amount of Protective Advances or (ii) seventy
percent (70%) of the Appraised Value of all owned Property
encumbered by a Mortgage from a Borrower in favor of Agent or
Bahamas Collateral Agent, and (c) to the extent the Maturity
Date has been extended pursuant to Section 2.9 , at all
times from and after May 1, 2011, an amount equal to the lesser of
(i) the result of (A) the Maximum Loan Amount less (B) the
aggregate outstanding amount of Protective Advances or
(ii) sixty-five percent (65%) of the Appraised Value of all
owned Property encumbered by a Mortgage from a Borrower in favor of
Agent or Bahamas Collateral Agent; provided, however, that on any
date on which a mandatory prepayment of the Loan is required to be
made pursuant to Section 2.3(f) hereof, the percentage
figures in clauses (a) and (b) of this definition shall be
automatically reduced to sixty-five percent (65%) or such greater
percentage (in no event to exceed the percentage figures set forth
in clauses (a) and (b)) yielded after application to the Loan of
amounts required to be paid under Section 2.3(f)
.”
“ Maximum Loan Amount
—means $95,093,695.23, as such amount may be permanently
reduced from time to time in accordance with Section 2.3
.”
“ Net Income (Loss)
—means, with respect to any period, the difference between
revenues and expenses as determined in accordance with GAAP, plus
the non-refundable portion of all Deposits to the extent such
amounts are not included as revenue pursuant to GAAP;
provided , however , notwithstanding anything to the
contrary in this Agreement or otherwise, Net Income (Loss) for all
purposes of this Agreement shall not include (i) any adjustment
relating to the conversion of PE DC Members (as defined in the
Contribution Agreement) and/or PE Resigning Members (as defined in
the Contribution Agreement) to the Club Membership Plan or (ii) one
time expenses not to exceed $5,200,000 in the aggregate relating
solely to the Borrowers’ recognition of non-cash equity
compensation expenses in accordance with GAAP in connection with
the deemed full vesting of equity grants to employees of Borrowers
upon consummation of the SAAC Purchase
Transaction.”
2.
Amendment to Section 1.1 . Effective as of the
Effective Date, Section 1.1 of the Loan Agreement is hereby
amended to add the following definitions thereto in correct
alphabetical order:
“ Cash Coverage Amount
—means, at any date of determination, (i) the sum of the Cash
Balance for each of the immediately preceding three (3) calendar
months as of the end of each such month, divided by (ii)
three (3).”
“ Fourth Amendment Effective
Date —means April __, 2010.”
“ One-Month Debt Service
—means, as of the last day of any calendar month, an amount
equal to one (1) month’s interest on the then-outstanding
Indebtedness of Borrowers to Agent and Lenders under the Loan
pursuant to the terms hereof.”
“ Three-Month Debt Service
—means, as of the last day of any calendar month, an amount
equal to three (3) months’ interest on the then-outstanding
Indebtedness of Borrowers to Agent and Lenders under the Loan
pursuant to the terms hereof.”
“ Two-Month Debt Service
—means, as of the last day of any calendar month, an amount
equal to two (2) month’s interest on the then-outstanding
Indebtedness of Borrowers to Agent and Lenders under the Loan
pursuant to the terms hereof.”
3.
Amendment to Section 2.3(a)(i) . Effective as of
the Effective Date, Section 2.3(a)(i) of the Loan Agreement
is hereby amended and restated in its entirety as
follows:
“(i) All
payments delivered to Agent, other than (A) as set forth in
Section 2.3(a)(ii)(A ), Section 2.3(d) , Section
2.3(e) , Section 2.3(f) , Section 2.3(g) and
Section 2.3(h) hereof and (B) proceeds arising from the
sale of Collateral more particularly set forth in Section
8.2(c) hereof, in good, immediately available funds in legal
tender of the United States of America, shall be applied to the
Obligations by Agent and Lenders as follows:
first , towards the payment of fees due Agent or any
Lender pursuant to the terms of this Agreement and any other fees,
costs and expenses due Agent or any Lender pursuant to
Section 10.2 of this Agreement,
second , to pay the outstanding amount of any
Protective Advances,
third , towards the payment of accrued and unpaid
interest under this Agreement in respect of the Loan,
fourth , to the payment of the principal of the Loan
(which payment shall immediately result in a corresponding
permanent reduction in the Maximum Loan Amount), and
fifth, towards the payment of all other Obligations in
any manner determined by Agent in its discretion.
Interest accrued on the Loan in respect of any
month shall be due and payable on, and shall be paid by Borrowers
no later than, the first Business Day of the following calendar
month.”
4.
Amendment to Section 2.3(a)(ii)(A) . Effective as
of the Effective Date, Section 2.3(a)(ii)(A) of the Loan
Agreement is hereby amended and restated in its entirety as
follows:
“(A) In
the event any Borrower sells or otherwise disposes of any owned
Property, such Borrower shall pay to Agent the applicable Repayment
Amount for such Property; plus the amount, if any, owed by
Borrowers pursuant to Section 2.3(d) after giving effect to
the removal of such Property from the Borrowing Base (if
applicable), and Agent shall apply such payments in accordance with
the provisions set forth in clause fourth of Section
2.3(a)(i) hereof; provided , further, that if a Default
or an Event of Default exists, such Borrower shall repay the Loan
in an amount equal to the sum of (y) one hundred percent (100%) of
the net proceeds from the disposition of such Property plus
(z) the amount, if any, owed by Borrowers pursuant to Section
2.3(d) after giving effect to such sale. Any such
payment shall immediately result in a corresponding permanent
reduction in the Maximum Loan Amount.”
5.
Amendment to Section 2.3(c) . Effective as of the
Effective Date, Section 2.3(c) of the Loan Agreement is
hereby amended to add the phrase “(which such prepayment
shall immediately result in a corresponding permanent reduction in
the Maximum Loan Amount)” immediately to the end of the last
sentence therein.
6.
Amendment to Section 2.3(d) . Effective as of the
Effective Date, Section 2.3(d) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
“(d)
Borrowing Base. If on any date the
aggregate original principal amount of the Loan shall exceed the
Borrowing Base on such date, Borrowers shall promptly pay the
amount of such excess to Agent together with interest accrued
thereon to (but not including) the date of such payment, and such
amounts shall be applied by Agent when received in good, collected
funds as set forth in clause fourth of
Section 2.3(a)(i) hereof. Any such payment
shall immediately result in a corresponding permanent reduction in
the Maximum Loan Amount. If the outstanding principal
amount of the Loan shall at any time exceed the Maximum Loan
Amount, Borrowers shall promptly pay the amount of such excess to
Agent together with interest accrued thereon to (but not including)
the date of such payment and such amounts shall be applied by Agent
when received in good, collected funds as set forth in clause
fourth of Section 2.3(a)(i)
hereof.”
7.
Amendment to Section 2.3(e) . Effective as of the
Effective Date, Section 2.3(e) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
“(e)
Minimum Amortization
. Notwithstanding
anything to the contrary in this Agreement, Borrowers shall repay
the Loan to the extent necessary for Borrower to comply with the
required mandatory principal paydowns on the dates and in the
cumulative principal amounts set forth in Schedule 19
attached hereto. Agent and Lenders shall have no
obligation to release any Liens on any Collateral in connection
with such payments (other than in connection with a payment in full
in cash of the Obligations). Each such payment shall
immediately result in a corresponding permanent reduction in the
Maximum Loan Amount. Upon receipt of payment of any
Repayment Amount, insurance proceeds, Condemnation Compensation or
mandatory prepayment pursuant to Section 2.3(f) , Section
2.3(g) or Section 2.3(h) to be credited toward payment
of principal of the Loan pursuant to Section 2.3(a)(i)
hereof or pursuant to Section 2.3(f) , Section 2.3(g)
or Section 2.3(h) hereof, as applicable, Agent shall credit
the amount actually received to the next scheduled required
amortization payment(s) set forth in Schedule 19
. In the event that, as of the end of each such
amortization period set forth in Schedule 19 , the Repayment
Amount(s), insurance proceeds, Condemnation Compensation and/or
mandatory prepayments pursuant to Section 2.3(f) ,
Section 2.3(g) and Section 2.3(h) actually collected
by Agent through the end of such amortization period is not
sufficient to satisfy the amount of principal reduction payable by
Borrower to Agent and Lenders through the end of such amortization
period, Borrower shall pay to Agent such difference. In
the event that, as of the end of each such amortization period, the
Repayment Amounts, insurance proceeds, Condemnation Compensation
and mandatory prepayments pursuant to Section 2.3(f) ,
Section 2.3(g) and Section 2.3(h) collected by Agent
during such amortization period are in excess of the amount
necessary to satisfy the required principal reduction payments to
be made by Borrower through such amortization period, the excess
amount of such payments shall be applied to the next succeeding
principal payment required pursuant to Schedule 19
.”
8.
Amendment to Section 2.3(f) . Effective as of the
Effective Date, Section 2.3(f) of the Loan Agreement is
hereby amended and restated in its entirety as follows:
“(f)
SAAC Purchase Transaction; Other Equity Sales or
Issuances . Notwithstanding anything to the
contrary in this Agreement, within one (1) Business Day following
consummation of the SAAC Purchase Transaction, any other sale of
equity interests of Holdings by Ultimate Holdings or SAAC to a
third party, any sale of equity interests of Ultimate Holdings by
Ultimate Resort to any third party or any issuance of equity
interests of Holdings, Ultimate Holdings or SAAC to any third
party, Borrowers shall prepay the Loan in an amount equal to
twenty-five percent (25%) of the Net Proceeds of the SAAC Purchase
Transaction or such other sale or issuance of equity interests of
Holdings paid to Holdings, Ultimate Holdings and/or any Company
Affiliate of Ultimate Holdings, as applicable; provided, that in no
event shall the amount prepaid pursuant to this Section
2.3(f) exceed the amount required to be paid as of the date of
such prepayment to reduce the principal balance of the Loan to an
amount equal to sixty-five percent (65%) of the Appraised Value of
all owned Property encumbered by a Mortgage from a Borrower in
favor of Agent or Bahamas Collateral Agent. Any amounts
paid pursuant to this Section 2.3(f) shall be applied to the
principal balance of the Loan notwithstanding the provisions of
Section 2.3(a) above and shall immediately result in a
corresponding permanent reduction in the Maximum Loan
Amount.”
9.
Amendment to Section 2.3 . Effective as of the
Effective Date, Section 2.3 of the Loan Agreement is hereby
amended to add the following subsection (g) to the end
thereto:
“(g)
Membership Sales and Upgrades
. Notwithstanding anything to the contrary in this
Agreement, Borrowers shall prepay the Loan in an amount equal to
the greater of (i) $500,000 per calendar quarter (which such amount
shall be paid on or prior to the last day of each calendar quarter)
and (ii) twenty-five percent (25%) of the aggregate amount of each
Deposit received by Borrowers from a Member after the Fourth
Amendment Effective Date (which amount shall be paid within one (1)
Business Day of Borrowers’ receipt of each such Deposit);
provided, that in no event shall the amount prepaid pursuant to
this Section 2.3(g) exceed the amount required to be paid as
of the date of such prepayment to reduce the principal balance of
the Loan to an amount equal to sixty-five percent (65%) of the
Appraised Value of all owned Property encumbered by a Mortgage from
a Borrower in favor of Agent or Bahamas Collateral
Agent. Any amounts paid pursuant to this Section
2.3(g) shall be applied to the principal balance of the Loan
notwithstanding the provisions of Section 2.3(a) above and
shall immediately result in a corresponding permanent reduction in
the Maximum Loan Amount.”
10.
Amendment to Section 2.3 . Effective as of the
Effective Date, Section 2.3 of the Loan Agreement is hereby
amended to add the following subsection (h) to the end
thereto:
“(h)
Deposit Account Amounts . On the Fourth
Amendment Effective Date, Borrowers shall pay to Agent the entire
Cash Balance of Borrowers on deposit in any segregated account
pursuant to Section 7.20 (as in effect immediately prior to
the Fourth Amendment Effective Date). Any amounts paid
pursuant to this Section 2.3(h) shall be applied to the
principal balance of the Loan notwithstanding the provisions of
Section 2.3(a) above and shall immediately result in a
corresponding permanent reduction in the Maximum Loan
Amount.”
11.
Amendment to Section 2.9. Effective as of the
Effective Date, Section 2.9 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
“ 2.9
Extension Term . Borrowers may request that Agent and
Lenders extend the Maturity Date for two (2) additional twelve
(12) calendar month periods in accordance with the requirements
below. Such extension requests shall be granted to
Borrowers upon the satisfaction of the following
conditions: (a) Borrowers shall have delivered to
Agent a written request to extend the Maturity Date at least sixty
(60), but not more than ninety (90) calendar days, prior to the
expiration of the then-effective Maturity Date; (b) Borrowers
shall have delivered to Agent, for the benefit of the Lenders, on
or before the effectiveness of such extension, an extension fee
equal to one-quarter of one percent (0.25%) of the then Maximum
Loan Amount; (c) at the time of (i) the making of such request
and (ii) the expiration of the then-effective Maturity Date, the
principal balance of the Loan shall be equal to or less than
sixty-five percent (65%) of the Appraised Value of all owned
Property encumbered by a Mortgage from a Borrower in favor of Agent
or Bahamas Collateral Agent, (d) no Default or Event of Default
shall have occurred at the time of making the extension request or
the commencement of the extension term of the Loan;
(e) Borrowers shall have executed any agreements, documents or
amendments to this Agreement and the other Loan Documents
reasonably requested by Agent in connection with such extension;
(f) during the extended term of the Loan, all terms and
conditions of the Loan Documents (other than the original Maturity
Date or this extension option) shall continue to apply; and
(g) Borrowers shall pay all out-of-pocket costs and expenses
incurred by Agent in connection with such extension of the Loan
including Agent’s reasonable attorneys’
fees.”
12.
Amendment to Section 7.20. Effective as of the
Effective Date, Section 7.20 of the Loan Agreement is hereby
amended and restated in its entirety as follows:
“ 7.20
Cash Coverage .
Borrowers, on a consolidated basis, shall (i) as of June 30,
2010, and at all times through September 29, 2010, have a Cash
Coverage Amount of not less than One-Month Debt Service, (ii) as of
September 30, 2010, and at all times through December 30, 2010,
have a Cash Coverage Amount of not less than Two-Month Debt
Service, and (iii) as of December 31, 2010, and at all times
thereafter, have a Cash Coverage Amount of not less than
Three-Month Debt Service.”
13.
Amendment to Schedule 19 . Effective as of the
Effective Date, Schedule 19 to the Loan Agreement is hereby
amended and restated in its entirety in the form of Exhibit A
attached hereto.
The effectiveness of this Agreement is subject
to the satisfaction of the following conditions precedent in a
manner satisfactory to Agent, unless specifically waived in writing
by Agent (the date on which all such conditions are satisfied or
waived being the “ Effective Date ”):
(a) Agent
shall have received this Agreement, duly executed by each of the
parties hereto.
(c) The
representations and warranties contained herein and in the Loan
Agreement, as amended hereby, and the Loan Documents, shall be true
and correct in all material respects as of the date hereof, as if
made on the date hereof, except for representations and warranties
that speak as to a particular date, in which case such
representations and warranties shall be true and correct in all
material respects as of such applicable date.
(d) After
giving effect to this Agreement, no Default or Event of Default
shall have occurred and be continuing, unless such Default or Event
of Default has been otherwise specifically waived in writing by
Agent.
(e) All
documents, instruments and other legal matters in connection with
the execution of this Agreement shall be satisfactory in form and
substance to Agent and its counsel.
As of April 1,
2010, and until the date immediately prior to the date hereof, the
aggregate outstanding principal amount of the Loan exceeded the
Borrowing Base. In connection with the foregoing,
Borrowers failed to comply with the provisions set forth in
Section 2.3(d) of the Loan Agreement requiring Borrowers to
promptly pay the amount of such excess to Agent together with
interest accrued thereon (the “ Specified Default
”). The Specified Default constitutes an Event of
Default under Section 8.1(a) of the Loan Agreement (the
“ Specified Event of Default ”). As a
result, Agent, Bahamian Collateral Agent and Lenders have the right
to exercise any and all rights and remedies available to them at
law or in equity, including, without limitation, the rights and
remedies set forth in the Loan
Agreement. Notwithstanding the foregoing, Agent and
Lenders hereby agree to waive the Sp
