LIMITED GUARANTEE
Exhibit 2.2
EXECUTION VERSION
This LIMITED GUARANTEE, dated as of February 3, 2011 (this “Limited Guarantee”), by
Cerberus Series Four Holdings, LLC, a Delaware limited liability company (the “Guarantor”),
in favor of Silverleaf Resorts, Inc., a Texas corporation (the “Company”).
RECITALS
WHEREAS, reference is hereby made to that certain Agreement and Plan of Merger, dated as of
the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the
“Merger Agreement”), by and among SL Resort Holdings Inc., a Delaware corporation
(“Parent”), Resort Merger Sub Inc., a Texas corporation and a wholly-owned subsidiary of
Parent (“Merger Sub”), and the Company, pursuant to which, on the terms and subject to the
conditions set forth in the Merger Agreement, Merger Sub has agreed to merge with and into the
Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary
of Parent. Capitalized terms used but not defined herein shall have the meaning ascribed to them
in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and intending to be legally bound hereby,
the parties hereto agree as follows:
(a) To induce the Company to enter into the Merger Agreement, the Guarantor, intending to be
legally bound, hereby absolutely, irrevocably and unconditionally, guarantees to the Company, up to
the Maximum Amount, the due and punctual payment and performance obligations of Parent and Merger
Sub and the Merger Agreement (the “Obligations”); provided that,
notwithstanding anything to the contrary contained herein, it is explicitly acknowledged and agreed
that (A) in the event that all conditions in Sections 6.1 and 6.3 of the Merger Agreement (other
than those not satisfied primarily due to the failure of Parent or Merger Sub to have performed
their respective obligations under the Merger Agreement) have been satisfied (or with respect to
certificates to be delivered at the Closing, are capable of being satisfied upon the Closing) or
waived (to the extent waivable by Parent) at the time when the Closing would have occurred but for
the failure of the Equity Financing to be funded or the failure of any conditions in Section 6.2 of
the Merger Agreement to have been satisfied, then upon the funding of the Equity Financing, the
Guarantor’s guarantee of the Obligations will be deemed satisfied; and (B) if the Company exercises
its right to terminate the Merger Agreement pursuant to Section 7.1(c)(i) of the Merger Agreement
and receive the Parent Termination Fee, then, upon the payment of the Parent Termination Fee to the
Company, the Guarantor’s guarantee of the Obligations will be deemed to be satisfied (the relevant
Obligations, as qualified by the limitations set forth in clauses (A) and (B) of this provision,
the “Applicable Obligations”). The parties understand and agree that the maximum aggregate
liability of the Guarantor in respect of any and all Obligations hereunder shall not exceed
$113,800,000 (the “Maximum Amount”), and the Company agrees that this Limited Guarantee may
not be enforced without giving effect to the Maximum Amount. All payments hereunder shall be made
in lawful money of the United States, in immediately available funds. This Limited Guarantee is an
unconditional guarantee of payment and not of collectibility and is in no way conditioned upon any
requirement that the
Company first attempt to collect any amounts in respect of the Obligations from Parent or
Merger Sub or resort to any security or other means of collecting payments. The Guarantor promises
and undertakes to make all payments hereunder free and clear of any deduction, offset, defense,
claim or counterclaim of any kind (other than defenses to the payment of the Obligations that are
available to Parent or Merger Sub under the Merger Agreement), except as provided in Section 1(b)
below. If Parent or Merger Sub is in breach of its Obligations, then the Company may at any time
and from time to time, at the Company’s option, take any and all actions available under the Merger
Agreement (subject to the limitations set forth in the Merger Agreement) or under applicable Law to
enforce its rights thereunder and to enforce its rights under this Limited Guarantee. Subject to
and in furtherance of the foregoing, the Guarantor acknowledges and agrees that the Company may, in
its sole discretion, bring and prosecute a separate action or actions against the Guarantor to
enforce its rights under this Limited Guarantee.
(b) Notwithstanding anything to the contrary contained in this Limited Guarantee, the Company
hereby agrees that to the extent Parent and Merger Sub are relieved of all or any portion of the
Obligations by the satisfaction thereof or pursuant to any written agreement with the Company
entered into prior to the Closing (any amount so relieved, the “Reduction Amount”), the
Maximum Amount shall be reduced by an amount equal to the Reduction Amount.
2. Changes In Obligations, Certain Waivers.
(a) The Guarantor agrees that the Applicable Obligations of the Guarantor shall not be
released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on
the part of the Company to assert any claim or demand or to enforce any right or remedy against
Parent or Merger Sub, subject to the second sentence of Section 7 hereof; (ii) the validity or
enforceability of the Merger Agreement, but only to the extent resulting from any lack of corporate
power or authority of Parent or Merger Sub; (iii) any change in the time, place or manner of
payment of any of the Applicable Obligations or any rescission, waiver, compromise, consolidation
or other amendment or modification of any of the terms or provisions of the Merger Agreement made
in accordance with the terms thereof or any agreement evidencing, securing or otherwise executed in
connection with any of the Applicable Obligations; (iv) the addition, substitution, discharge or
release of any entity or other Person interested in the transactions contemplated by the Merger
Agreement; (v) any change in the corporate existence, structure or ownership of Parent, Merger Sub
or any other Person interested in the transactions contemplated by the Merger Agreement; (vi) any
insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent, Merger Sub or
any other Person interested in the transactions contemplated by the Merger Agreement; (vii) except
as otherwise provided herein, the existence of any claim, set-off or other right that the Guarantor
may have at any time against Parent, Merger Sub or the Company, whether in connection with the
Applicable Obligations or otherwise; or (viii) the adequacy of any other means the Company may have
of obtaining the payment of the Applicable Obligations. The Guarantor waives promptness,
diligence, notice of the acceptance of this Limited Guarantee and of the Applicable Obligations,
presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice
of any Obligations incurred and all other notices of any kind (other than notices expressly
required to be provided to the Guarantor hereunder or to Parent or Merger Sub pursuant to the
Merger
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Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium
Law or other similar Law now or hereafter in effect, any right to require the marshalling of assets
of Parent or Merger Sub or any other Person interested in the transactions contemplated by the
Merger Agreement, and all suretyship defenses generally, other than defenses that are available to
Parent and Merger Sub under the Merger Agreement or to the Guarantor in respect of a breach by the
Company of this Limited Guarantee or based upon fraud or willful misconduct by the Company or any
of its Affiliates. The Guarantor acknowledges that it will receive substantial direct and indirect
benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth
in this Limited Guarantee are knowingly made in contemplation of such benefits.
(b) The Company hereby covenants and agrees that it shall not institute, and shall cause its
respective Affiliates not to institute, any proceeding or bring any other claim arising under, or
in connection with, the Merger Agreement or the transactions contemplated thereby or otherwise
relating thereto (including under or in respect of the Equity Commitment Letter) against (i) any of
the former, current and future equity holders, controlling persons, directors, officers, employees,
agents, Affiliates, members, managers, general or limited partners or assignees of the Guarantor,
or (ii) any former, current or future stockholder, controlling person, director, officer, employee,
general or limited partner, member, manager, Affiliate, agent or assignee of any of the foregoing
(those persons and entities described in any of the foregoing clauses, and any of their respective
successors or assigns, each being referred to as a “Non-Recourse Party”), except (x) for
claims against the Guarantor under this Limited Guarantee or under the Equity Commitment Letter
issued by Guarantor, or against Parent or Merger Sub under the Merger Agreement or (y) in the event
that the Guarantor (I) consolidates with or merges with any other Person (an “Acquiring
Person”) and is not the continuing or surviving entity of such consolidation or merger or (II)
sells, transfers, conveys or otherwise disposes of, including, without limitation, by the
liquidation, dissolution or winding up of the Guarantor, all or a substantial portion of its
properties and other assets to any Person (also an “Acquiring Person”) such that the sum of
the Guarantor’s remaining net assets plus uncalled capital is less than the Maximum Amount, then,
in each case, the Company may seek recourse from such Acquiring Person but only to the extent of
the unpaid liability of the Guarantor hereunder. As used herein, unless otherwise specified
herein, the term “Guarantor” shall be deemed to include any such Acquiring Person. The Guarantor
hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to
institute, any proceeding asserting that this Limited Guarantee or any portion thereof is illegal,
invalid or unenforceable in accordance with its terms.
3. No Waiver; Cumulative Rights. No failure on the part of the Company to exercise,
and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by the Company of any right, remedy or power hereunder
preclude any other or future exercise of any right, remedy or power hereunder. Each and every
right, remedy and power hereby granted to the Company or allowed it by Law or other agreement shall
be cumulative and not exclusive of any other, and may be exercised by the Company at any time or
from time to time. The Company shall not have any obligation to proceed at any time or in any
manner against, or exhaust any or all of the Company’s rights against Parent or Merger Sub or any
other Person liable for any Applicable Obligations prior to proceeding against the Guarantor
hereunder, and the failure by the Company to pursue rights or remedies against Parent or Merger Sub
shall not relieve the Guarantor of any liability hereunder,
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and shall not impair or affect the rights and remedies, whether express, implied or available
as a matter of law, of the Company. Nothing in this Limited Guarantee shall affect or be construed
to affect any liability of Parent or Merger Sub to the Company.
4. Representations And Warranties. The Guarantor hereby represents and warrants that:
(a) the Guarantor has all requisite power and authority to execute and deliver this Limited
Guarantee and to perform its obligations hereunder and the execution, delivery and performance of
this Limited Guarantee (i) have been duly authorized and approved by all necessary action on the
part of the Guarantor and (ii) do not and will not (A) result in any breach or violation of, or
default (with or without notice or lapse of time, or both) under, require consent under, or give
rise to a right of termination, cancellation, modification or acceleration of any obligation or the
loss of any benefit under any loan, guarantee of indebtedness or credit agreement, note, bond,
mortgage, indenture, lease, agreement, contract, permit, franchise, right or license binding on the
Guarantor or any of its subsidiaries or result in the creation of any Lien upon any of its or their
properties, assets or rights or (B) conflict with or result in any violation of the Guarantor’s
charter, partnership agreement, operating agreement or similar organizational documents or any Law,
regulation, rule, decree, order or, judgment binding on the Guarantor or any of its properties or
assets;
(b) all consents, approvals, authorizations, permits of, filings with and notifications to,
any governmental authority necessary for the due execution, delivery and performance of this
Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been
duly complied with, and no other action by, and no notice to or filing with, any governmental
authority or regulatory body is required in connection with the execution, delivery or performance
of this Limited Guarantee;
(c) this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors’ rights generally, and (ii) general equitable principles (whether considered in
a proceeding in equity or at law);
(d) the Guarantor has, and shall continue to have for so long as this Limited Guarantee
remains in effect, all funds necessary to pay the Applicable Obligations under this Limited
Guarantee; and
(e) the Guarantor acknowledges that in consideration of the execution and delivering of the
Merger Agreement by the Company, the Company is relying on the representations, warranties,
covenants and agreements made by the Guarantor in this Limited Guarantee.
5. No Assignment. Neither the Guarantor nor the Company may assign or delegate their
respective rights, interests or obligations hereunder to any other Person (except by operation of
Law) without the prior written consent of the Company or the Guarantor, as the case may be.
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6. Notices. Any notice, request, instruction or other document to be given hereunder
by any party to the other shall be in writing and delivered personally or sent by registered or
certified mail, postage prepaid, by facsimile or overnight courier:
If to the Guarantor:
Cerberus Series Four Holdings, LLC
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent
Facsimile: (000) 000-0000
x/x Xxxxxxxx Xxxxxxx Xxxxxxxxxx, X.X.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Neporent
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
If to the Company:
Silverleaf Resorts, Inc.
0000 Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
0000 Xxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: J. Xxxxx Xxxxxxxx
Facsimile: (000) 000-0000
and:
Xxxxxxx Xxxxxxx Xxxx Cousins & Xxxxxxxx LLP
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: (000) 000-0000
Facsimile: Xxxxx X. Xxxx
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: (000) 000-0000
Facsimile: Xxxxx X. Xxxx
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or to such other persons or addresses as may be designated in writing by the party to receive such
notice as provided above. Any notice, request, instruction or other document given as provided
above shall be deemed given to the receiving party upon actual receipt, if delivered personally;
three business days after deposit in the mail, if sent by registered or certified mail; upon
confirmation of successful transmission if sent by facsimile (provided that if given by
facsimile such notice, request, instruction or other document shall be followed up within one
business day by dispatch pursuant to one of the other methods described herein); or on the next
business day after deposit with an overnight courier, if sent by an overnight courier.
7. Continuing Guarantee. This Limited Guarantee may not be revoked or terminated and
shall remain in full force and effect and shall be binding on the Guarantor and its successors and
assigns (and shall inure to the benefit of the Company and be enforceable by the Company against
such successors and assigns) until all of the Applicable Obligations have been satisfied in full.
Notwithstanding the foregoing, this Limited Guarantee shall terminate and the Guarantor shall have
no further obligations under this Limited Guarantee as of the earlier of (a) the Effective Time and
(b) the 90th day after a termination of the Merger Agreement in accordance with its terms, unless
prior to the end of such 90-day period, the Company shall have commenced a legal proceeding to
enforce any of its rights under the Merger Agreement and/or the Equity Commitment Letter and/or
this Limited Guarantee, in which case this Limited Guarantee shall terminate upon either (i) a
final, non-appealable resolution of such legal proceeding and payment in full of the Applicable
Obligations, if applicable, or (ii) a written agreement signed by each of the parties hereto
terminating this Limited Guarantee. Except as otherwise expressly provided herein, in the event
that the Company or any of its Affiliates (i) asserts in any proceeding relating to this Limited
Guarantee that the provisions of Section 1 hereof limiting the Guarantor’s liability under this
Limited Guarantee to the Maximum Amount or that the provisions of Section 2(b) or Section 8 hereof
are illegal, invalid or unenforceable in whole or in part, or (ii) asserts any theory of liability
against the Guarantor or any Non-Recourse Party with respect to the Merger Agreement or the
transactions contemplated thereby, other than the liability of the Guarantor (but not any
Non-Recourse Party) under this Limited Guarantee, or of Parent or Merger Sub under the Merger
Agreement, then (x) the Obligations of the Guarantor under this Limited Guarantee shall terminate
ab initio and be null and void and (y) if the Guarantor has previously made any payments under this
Limited Guarantee, the Guarantor shall be entitled to recover such payments from the Company.
8. No Recourse. Except as otherwise expressly provided herein, by its acceptance of
the benefits of this Limited Guarantee, the Company acknowledges and agrees that no Person other
than the Guarantor has any obligations hereunder and that no recourse shall be had hereunder, or
for any claim based on, in respect of, or by reason of, such obligations or their creation,
against, and no personal liability shall attach to, the Guarantor or any Non-Recourse Party,
whether by or through attempted piercing of the corporate veil, by or through a claim by or on
behalf of the Company against the Guarantor or any Non-Recourse Party, by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or
applicable Law, or otherwise, except for the Company’s rights against the Guarantor under this
Limited Guarantee, for the Parent’s, Merger Sub’s or the Company’s rights under the Equity
Commitment Letter, and for the Company’s rights against Parent or Merger Sub under the Merger
Agreement. Recourse against the Guarantor pursuant to and expressly subject to the terms and
conditions of this Limited Guarantee and the Equity Commitment Letter,
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and against Parent or Merger Sub under the Merger Agreement and the Equity Commitment Letter,
shall be the sole and exclusive remedies of the Company against the Guarantor, Parent, or Merger
Sub in respect of any liabilities or obligations arising under, or in connection with, the Merger
Agreement, the Equity Commitment Letter or the transactions contemplated hereby or thereby.
9. No Subrogation. The Guarantor hereby unconditionally and irrevocably agrees not
to exercise any rights that it may now have or hereafter acquire against Parent, Merger Sub or any
other Person liable with respect to any of the Applicable Obligations that arise from the
existence, payment, performance or enforcement of the Guarantor’s obligation under or in respect of
this Limited Guarantee or any other agreement in connection therewith, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of the Company against Parent, Merger Sub or
such other Person, whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or receive from Parent,
Merger Sub or such other Person, directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such claim, remedy or right, unless and
until the Applicable Obligations and any other amounts that may be payable under Section 12 of this
Limited Guarantee shall have been paid in full in cash. If any amount shall be paid to the
Guarantor in violation of the immediately preceding sentence at any time prior to the satisfaction
in full of the Applicable Obligations and any other amounts that may be payable under Section 12 of
this Limited Guarantee, such amount shall be received and held in trust for the benefit of the
Company, shall be segregated from other property and funds of the Guarantor and shall forthwith be
paid or delivered to the Company in the same form as so received (with any necessary endorsement or
assignment) to be credited and applied to the Obligations and any other amounts that may be payable
under this Limited Guarantee, in accordance with the terms of the Merger Agreement and herewith,
whether matured or unmatured, or to be held as collateral for the Applicable Obligations or other
amounts payable under this Limited Guarantee thereafter arising.
10. Governing Law; Jurisdiction. THIS LIMITED GUARANTEE, AND ALL CLAIMS AND CAUSES OF
ACTION ARISING OUT OF, BASED UPON, OR RELATED TO THIS LIMITED GUARANTEE OR THE NEGOTIATION,
EXECUTION OR PERFORMANCE HEREOF, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. Any legal action, suit or
proceeding arising out of, based upon or relating to this Limited Guarantee or the transactions
contemplated hereby shall be brought exclusively in the Court of Chancery of the State of Delaware,
or to the extent such Court does not have subject matter jurisdiction, the Superior Court of the
State of Delaware (the “Chosen Courts”), and solely in connection with claims arising under
this Limited Guarantee or the transactions that are the subject of this Limited Guarantee each
party hereto (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii)
waives any objection to laying venue in any such action or proceeding in the Chosen Courts, (iii)
waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction
over any party hereto and (iv) agrees that service of process upon such party in any such action or
proceeding shall be effective if notice is given in accordance with Section 6 of this Limited
Guarantee. Each party hereto irrevocably waives any and all right to trial by jury in any legal
proceeding arising
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out of or relating to this Limited Guarantee or the transactions contemplated hereby. EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LIMITED GUARANTEE IS
LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LIMITED GUARANTEE, OR
THE TRANSACTIONS CONTEMPLATED BY THIS LIMITED GUARANTEE. EACH PARTY CERTIFIES AND ACKNOWLEDGES
THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS LIMITED GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.
11. Counterparts. This Limited Guarantee may be executed by facsimile or electronic
transmission and in one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
12. Expenses. The Guarantor agrees to pay, and the Company, by its acceptance of this
Limited Guarantee, agrees to pay, all reasonable out of pocket expenses (including reasonable fees
of counsel) incurred by the other party in connection with any litigation with respect to this
Limited Guarantee if such other party prevails in such litigation.
13. Miscellaneous.
(a) This Limited Guarantee, the Equity Commitment Letter, the Merger Agreement (including,
without limitation, all schedules, annexes and exhibits thereto) and the Confidentiality Agreement
represent all agreements between the parties relative to the subject matter hereof. No modification
or waiver of any provision hereof shall be enforceable unless agreed to by the Company and the
Guarantor in writing.
(b) The provisions of this Limited Guarantee shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or enforceability of the other
provisions hereof. If any provision of this Limited Guarantee, or the application thereof to any
Person or any circumstance, is invalid or unenforceable, (i) a suitable and equitable provision
shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (ii) the remainder of this
Limited Guarantee and the application of such provision to other Persons or circumstances shall not
be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application thereof, in any other
jurisdiction.
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(c) When a reference is made in this Limited Guarantee to a Section, such reference shall be
to a Section of this Limited Guarantee unless otherwise indicated. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part of or to affect the
meaning or interpretation of this Limited Guarantee. Whenever the words “include,” “includes” or
“including” are used in this Limited Guarantee, they shall be deemed to be followed by the words
“without limitation.” The use of the word “or” is not intended to be exclusive unless expressly
indicated otherwise. The phrases “herein,” “hereof,” “hereunder” and words of similar import shall
be deemed to refer to this Limited Guarantee as a whole and not to any particular provision of this
Limited Guarantee.
(d) The parties have participated jointly in negotiating and drafting this Limited Guarantee.
In the event that an ambiguity or a question of intent or interpretation arises, this Limited
Guarantee shall be construed as if drafted jointly by the parties, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of
this Limited Guarantee.
(e) Each party acknowledges and agrees that (i) this Limited Guarantee is not intended to, and
does not, create any agency, partnership, fiduciary or joint venture relationship between or among
any of the parties hereto and neither this Limited Guarantee nor any other document or agreement
entered into by any party hereto relating to the subject matter hereof shall be construed to
suggest otherwise, and (ii) the obligations of the Guarantor under this Limited Guarantee are
solely contractual in nature.
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IN WITNESS WHEREOF, the undersigned have caused this Limited Guarantee to be executed and
delivered as of the date first written above by its officer thereunto duly authorized.
| CERBERUS SERIES FOUR HOLDINGS, LLC | ||||||
| By: | Cerberus Institutional Partners, L.P.— Series Four, its Managing Member |
|||||
| By: | Cerberus Institutional Associates, L.L.C., its General Partner |
|||||
| By: | /s/ Xxxx X. Neporent | |||||
| Name: | Xxxx X. Neporent | |||||
| Title: | Senior Managing Director | |||||
| SILVERLEAF RESORTS, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxx Xx. | |||||
| Name: | Xxxxx X. Xxxxx Xx. | |||||
| Title: | Chief Financial Officer | |||||
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