FIRST AMENDMENT TO LOAN AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO LOAN
AGREEMENT
THIS FIRST AMENDMENT TO LOAN
AGREEMENT (the "Amendment"), dated as
of November 11, 2008, is between CONSOLIDATED MORTGAGE, LLC, a
Nevada limited liability company ("Borrower") and DESERT CAPITAL TRS, INC., a
Delaware corporation (the "Lender").
RECITALS:
A. Borrower
and Lender entered into that certain Loan Agreement dated as of November 21,
2007 (as the same may be amended or otherwise modified from time to time, the
"Agreement").
B. Pursuant
to the Agreement, Borrower executed that certain Promissory Note dated as of
November 21, 2007, payable to the order of Lender in the original principal
amount of $15,500,000.00 (as the same may renewed, extended or otherwise
modified from time to time, the "Note").
C. The
payment and performance of the liabilities and obligations of Borrower under the
Loan Documents (as defined in the Agreement), including without limitation, the
indebtedness evidenced by the Note, are secured by that certain Pledge Agreement
dated November 21, 2007 between Sandstone Equity Investors, LLC, a Delaware
limited liability company ("Sandstone") (such
Pledge Agreement as the same may be amended, supplemented or modified from time
to time is hereinafter referred to as the "Pledge
Agreement").
D. Borrower
has requested and Lender has agreed, subject to the terms and conditions set
forth herein, to modify certain terms of the Agreement.
E. Borrower
and Lender now desire to amend the Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of
the premises herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE
I
Definitions
Section
1.01 Definitions. Capitalized
terms used in this Amendment, to the extent not otherwise defined herein, shall
have the same meanings as in the Agreement, as amended hereby.
ARTICLE
II
Amendments
Section
2.01 Amendment to Section
8. Effective as of the date hereof, Section 8 of the Agreement
is hereby amended and restated to read in its entirety as follows:
8. Financial Covenants. Until the
Note and all other obligations and liabilities of Borrower and Buyer under this
Loan Agreement, the other Loan Documents and the Purchase Agreement are
indefeasibly paid and finally satisfied in full, Borrower will maintain the
following financial convenants:
(a) Net
Worth. Borrower will maintain, at all times, its total assets
(as adjusted by adding back all non-cash charges) less its total
liabilities in an amount not less than $2,500,000.
(b) Fixed Charge Coverage
Ratio. Borrower will maintain as of the end of each fiscal
year commencing December 31, 2008, a ratio of (a) net income after taxes plus
depreciation, amortization, other non-cash expenses, interest expense, lease
expense and installment payments made pursuant to Section 2.2(b) of the Purchase
Agreement for the 12 month period ending with such fiscal year, less any
Distributions during such 12 month period, to (b) interest expense, lease
expense, installment payments made pursuant to Section 2.2(b) of the Purchase
Agreement, current maturities of long-term debt and current maturities of
long-term leases for such 12 month period, of not less than 1.0 to
1.0.
(c) Cash
Balance. Borrower will maintain an unrestricted available cash
balance in an amount not less than $250,000 as of the end of each calendar
quarter.
ARTICLE
III
Conditions
Precedent
Section
3.01 Conditions. The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent:
(a) Lender
shall have received all of the following, each dated (unless otherwise
indicated) the date of this Amendment, in form and substance satisfactory to
Lender:
(i) Note. The
Modification of Note Agreement executed by Borrower in substantially the form of
Annex 1 hereto; and
(ii) Additional
Information. Lender shall have received such additional
documents, instruments and information as Lender or its legal counsel, Xxxxx
Lord Xxxxxxx & Xxxxxxx LLP may request; and
(b) The
representations and warranties contained herein and in all other Loan Documents,
as amended hereby, shall be true and correct as of the date hereof as if made on
the date hereof;
(c) After
giving effect to this Amendment and the Modification of Note Agreement, no
default or Event of Default shall be continuing; and
(d) All
proceedings taken in connection with the transactions contemplated by this
Amendment and all documents, instruments, and other legal matters incident
thereto shall be satisfactory to Lender and its legal counsel, Xxxxx Lord
Bissell & Liddell LLP.
ARTICLE
IV
Ratifications,
Representations and Warranties
Section
4.01 Ratifications. The
terms and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Agreement and except as
expressly modified and superseded by this Amendment, the terms and provisions of
the Agreement and the other Loan Documents are ratified and confirmed and shall
continue in full force and effect. Borrower and Lender agree that the
Agreement as amended hereby and the other Loan Documents shall continue to be
legal, valid, binding and enforceable in accordance with their respective
terms. The Borrower further acknowledges and agrees that the
indebtedness evidenced by the Note constitutes a portion of the Indebtedness,
and is secured by and shall continue to be secured by the
Collateral.
Section
4.02 Representations and
Warranties. Borrower hereby represents and warrants to Lender
that (i) the execution, delivery and performance of this Amendment and any and
all other Loan Documents executed and/or delivered in connection herewith have
been authorized by all requisite action on the part of Borrower and will not
violate the limited liability agreement of Borrower, (ii) the representations
and warranties contained in the Agreement, as amended hereby, and any other Loan
Document are true and correct on and as of the date hereof as though made on and
as of the date hereof, (iii) no Event of Default has occurred and is continuing,
and (iv) Borrower is in full compliance with all covenants and agreements
contained in the Agreement as amended hereby.
ARTICLE
V
Miscellaneous
Section
5.01 Survival of Representations
and Warranties. All representations and warranties made in
this Amendment or any other Loan Document including any Loan Document furnished
in connection with this Amendment shall survive the execution and delivery of
this Amendment and the other Loan Documents, and no investigation by Lender or
any closing shall affect the representations and warranties or the right of
Lender to rely upon them.
Section
5.02 Reference to
Agreement. Each of the Loan Documents, including the Agreement
and any and all other agreements, documents, or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of
the Agreement as amended hereby, are hereby amended so that any reference in
such Loan Documents to the Agreement shall mean a reference to the Agreement as
amended hereby.
Section
5.03 Expenses of
Lender. As provided in the Agreement, Borrower agrees to pay
on demand all costs and expenses incurred by Lender in connection with the
preparation, negotiation, and execution of this Amendment and the other Loan
Documents executed pursuant hereto and any and all amendments, modifications,
and supplements thereto, including without limitation the costs and fees of
Lender's legal counsel, and all costs and expenses incurred by Lender in
connection with the enforcement or preservation of any rights under the
Agreement, as amended hereby, or any other Loan Document, including without
limitation the costs and fees of Lender's legal counsel.
Section
5.04 Severability. Any
provision of this Amendment held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the provision so held to
be invalid or unenforceable.
Section
5.05 APPLICABLE
LAW. THIS AMENDMENT AND ALL OTHER LOAN DOCUMENTS EXECUTED
PURSUANT HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEVADA.
Section
5.06 Successors and
Assigns. This Amendment is binding upon and shall inure to the
benefit of Lender and Borrower and their respective successors and assigns,
except Borrower may not assign or transfer any of its rights or obligations
hereunder without the prior written consent of Lender.
Section
5.07 Counterparts. This
Amendment may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
Section
5.08 Effect of
Waiver. No consent or waiver, express or implied, by Lender to
or for any breach of or deviation from any covenant, condition or duty by
Borrower or Sandstone shall be deemed a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty.
Section
5.09 Headings. The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment.
Section
5.10 ENTIRE
AGREEMENT. THIS AMENDMENT, THE AGREEMENT, THE NOTE, THE PLEDGE
AGREEMENT, THE PURCHASE AGREEMENT AND ALL OTHER INSTRUMENTS, DOCUMENTS AND
AGREEMENTS EXECUTED AND DELIVERED IN CONNECTION HEREWITH AND THEREWITH EMBODY
THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDINGS, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE
CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
Executed as of the date first written
above.
BORROWER:
CONSOLIDATED
MORTGAGE, LLC
By: /s/Xxxx X. Xxxxxxxx
Xxxx X.
Xxxxxxxx
President
LENDER:
DESERT
CAPITAL TRS, INC.
By: /s/Xxxxx X. Xxxxx
Xxxxx X.
Xxxxx
Chief
Financial Officer
By execution hereof, Sandstone Equity
Investors, LLC, a Delaware limited liability company (“Sandstone”) hereby
consents and agrees to this First Amendment to Loan Agreement and agrees that
the Pledge Agreement dated November 21, 2007 to which it is a party, is in full
force and effect and shall remain in full force and effect and shall continue to
be the legal, valid and binding obligation of Sandstone enforceable against
Sandstone in accordance with its terms. Sandstone further
acknowledges and agrees that the term “Indebtedness” as defined in the Pledge
Agreement includes, without limitation, the indebtedness, liabilities and
obligations of Maker to Payee evidenced by the Note, as modified pursuant to the
Modification of Note Agreement dated of even date herewith.
SANDSTONE EQUITY INVESTORS,
LLC
By: /s/Xxxx X. Xxxxxxxx
Xxxx X.
Xxxxxxxx
President
ANNEX
1
Modification of Note
Agreement
