AMENDMENT NO. 1 TO ACQUISITION, CONSTRUCTION AND
RECEIVABLES LOAN AND SECURITY AGREEMENT
BY THIS AMENDMENT NO. 1 To ACQUISITION, CONSTRUCTION, AND RECEIVABLES
LOAN AND SECURITY AGREEMENT ("Amendment") dated as of Xxxxx 0, 0000,
XXXXXX CORPORATION, a Massachusetts corporation ("Borrower") and FINOVA CAPITAL
CORPORATION (fka Greyhound Financial Corporation), a Delaware corporation
("Lender"), for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, hereby confirm and agree as follows:
ARTICLE 1.
INTRODUCTION
1.1 Borrower and Lender previously entered into an Acquisition,
Construction, and Receivables Loan and Security Agreement dated as of June 9,
1995 ("Loan Agreement") relating to an acquisition loan in a maximum principal
amount not to exceed $1,210,000, a construction loan in a maximum aggregate
principal amount not to exceed $4,250,000 and a revolving line of credit loan in
a maximum principal amount not to exceed S5,000,000 at any time.
1.2 Borrower and Lender wish to amend the Loan Agreement, all as
more fully provided below.
ARTICLE 2.
AGREEMENT
2.1 Capitalized terms used but not otherwise defined herein shall have
the meaning given them in the Loan Agreement.
2.2 The Loan Agreement is amended as follows:
(a) Paragraph 3-2 is deleted in its entirety an d the
following is substituted in its place:
3.2 If (a) a previously Eligible Instrument which is part of
the Receivables Collateral ceases to be an Eligible Instrument
("Ineligibility Event") and (b) as a result such Ineligibility Event,
the outstanding principal balance of the Loan exceeds the Borrowing
Base of all Eligible Instruments, then within thirty (30) days
thereafter, Borrower will either (i) make to Lender a principal payment
in an amount equal to the excess ("Borrowing Base Shortfall") of the
outstanding principal balance of the Loan over the Borrowing Base of
all Eligible Instruments on the date of the Ineligibility Event, plus
accrued and unpaid interest on such principal payment, or (ii) replace
any one or more of such ineligible Instruments with one or more
Eligible Instruments having an aggregate Borrowing Base not less than
the Borrowing Base Shortfall. Simultaneously with such payment or the
delivery of the replacement Instrument to Lender, Borrower will deliver
to Lender all of the items (except for a "Request for Advance and
Certification") required to be delivered by Borrower to Lender pursuant
to paragraph 4.1E, together with a "Borrower's Certificate" in form and
substance identical to Exhibit G. Lender will reassign to Borrower,
without recourse or warranty of any kind, the ineligible Instrument
causing an Ineligibility Event if:
(a) no Event of Default or Incipient Default exists; and
(b) (i) Borrower has made any principal payment or replacement
with an Eligible Instrument as required above in connection with the
Ineligibility Event; or (ii) there is no Borrowing Base Shortfall and
Borrower has requested Lender in writing to release the ineligible
Instrument.
Borrower will prepare the reassignment instrument, which shall
be in form and substance identical to Exhibit G is and shall deliver it
to Lender for execution.
(b) Paragraph 5.2(a) and (b) are deleted in their entirety, and
the following is inserted in their place:
(a) Construction Loan Partial Release Payments.
Commencing on the date of the first Construction Loan Advance, and
until all principal , interest and other sums due under the loan
Documents have been paid, exclusive of principal, interest and other
charges on the Acquisition Loan Note and the Receivables Loan Note,
Borrower will make to Lender at the time of each partial release of a
Time-Share Interest from the Borrower's Mortgage a principal payment in
an amount equal to the Partial Release Fee (Construction Loan) required
to be paid in connection with such release as determined under the
terms of the Borrower's Mortgage.
(b) Acquisition Loan Partial Release Payments. Until
principal, interest and other charges on the Acquisition Loan Note have
been paid, Borrower will make to Lender at the time of each partial
release of a Time Share Interest from the Borrower's Mortgage, in
addition to the Partial Release Fee (Construction Loan), a
principal payment in an amount equal to the Partial Release Fee
(Acquisition Loan), as that term is defined in the Borrower's Mortgage;
provided, however, that anything in the foregoing or in the Borrower's
Mortgage to the contrary notwithstanding, Borrower's obligation to make
any principal payment under this subparagraph or to pay any Partial
Release Fee (Acquisition Loan) shall not commence until the date of the
first Construction Loan Advance.
(c) Paragraph 5.2(e) is deleted in its entirety and the following
inserted in its place:
(c) Receivables Loan Minimum Required Principal Payments. If
there exists a Borrowing Base Shortfall for any reason other than an
Ineligibility Event which is subject to the provisions of paragraph
3.2, Borrower, without notice or demand, will immediately (a) make to
Lender a principal payment in an amount equal to the Borrowing Base
Shortfall plus accrued and unpaid interest on such principal payment or
(b) deliver to Lender one or more Eligible Instruments having an
aggregate Borrowing Base not less than the Borrowing Base Shortfall.
Simultaneously with the delivery of the Eligible Instruments to correct
the Borrowing Base Shortfall, Borrower will deliver to Lender all of
the items (except for a "Request for Advance and Certification")
required to be delivered by Borrower to Lender pursuant to paragraph
4.1E, together with a "Borrower's Certificate" in form and substance
identical to Exhibit G.
(d) Paragraphs (d) and (e) of Exhibit B are deleted in their
entirety and the following is inserted in their place:
(d) The Instrument must provide for consecutive level monthly
installments of principal and interest in U.S. funds sufficient to
repay the Instrument over a term not exceeding eighty-four (84) months
from the date of its execution, with interest accruing at not less than
nine percent (9%) per annum; provided, that the payment term for up to
ten percent (10%) of all Eligible Instruments may be one hundred twenty
(120) months. So long as the nine percent (9%) minimum rate is
maintained, installments on the Instrument may vary to the extent
required by a floating interest rate. The foregoing notwithstanding, an
Instrument will not fail to qualify as an Eligible Instrument solely
because it does not bear interest, so long as the down-payment is at
least 50% of the total sales price (no part of which has been advanced
or paid to the Purchaser by Borrower,
directly or indirectly) and the unpaid principal balance of all such
Instruments hypothecated to Lender does not exceed 15% of all Eligible
Instruments hypothecated to Lender.
(e) The Instrument must be beyond the applicable rescission
period and no payment is more than 29 days past due and no payment has
been deferred; and if at any time the aggregate principal balance of
all Instruments which comprise the Receivables Collateral and which
have payments more than sixty (60) days past due exceeds three percent
(3%) of the aggregate principal balance of all Instruments comprising
the Receivables Collateral, an aging requirement may be instituted at
Lerider's option.
2.3 Borrower will on demand pay, or at Lender's election, reimburse
Lender for Lender's reasonable attorneys' fees and other reasonable
out-of-pocket expenses in connection with the documentation of this Amendment.
2.4 Borrower confirms and restates to Lender as of the date hereof all
its representations and warranties set forth in the Loan Agreement. Borrower
further acknowledges that Lender has performed and is not in default of its
obligations under the Documents and the Other Loan Documents and that there are
no offsets, defenses or counterclaims with respect to any of Borrower's
Obligations under the Documents,
2.5 This Amendment constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof
and this Amendmentsupersedes all prior written or oral understandings and
agreements between the parties in connection with its subject matter.
2.6 This Amendment may be executed in one or more counterparts, and any
number of which having been signed by all the parties hereto shall be taken as
one original.
2.7 Borrower and Lender hereby ratify and confirm the Loan Agreement,
as amended hereby, in all respects; and, except as expressly amended hereby, the
Loan Agreement shall remain in full force and effect.
IN WITNESS WHEREOF this instrument is executed as of the date set forth
above.
BORROWER: XXXXXX CORPORATION, a Massachusetts
corporation
By:
Type/Print Name:
Title:
LENDER: FINOVA CAPITAL CORPORATION, a Delaware
corporation
By:
Type/Print Name:
Title:
By executing this Consent, XXXXXX RECEIVABLES FINANCE CORPORATION VI
acknowledges to FINOVA CAPITAL CORPORATION (fka Greyhound Financial Corporation)
its consent to the foregoing Amendment No. 1 to Acquisition, Construction and
Receivables Loan and Security Agreement ("Amendment") and that such Amendment
shall not impair any of its obligations to FINOVA Capital Corporation.
XXXXXX RECEIVABLES FINANCE CORPORATION VI.
By:
Type/Print Name:
Title:
