DR - 12.31.2012 - Ex 10.34




EXHIBIT 10.34
Execution Version




FOURTH AMENDMENT  TO LOAN AND SECURITY AGREEMENT




FOURTH   AMENDMENT    TO  LOAN   AND   SECURITY   AGREEMENT    (this
"Amendment"), dated as of November 20, 2012, is among TEMPUS ACQUISITION, LLC, a Delaware limited liability company (the "Borrower"), the Lenders signatories below, and GUGGENHEIM     CORPORATE     FUNDING,     LLC,    as    administrative     agent    (the
"Administrative Agent").




RECITALS


A. The Borrower, the Administrative Agent and the Lenders are party to that certain Credit and Security Agreement dated as of June 30, 2011 (as amended, restated or otherwise modified from time to time, the "Credit Agreement"). Unless otherwise specified herein, capitalized terms used in this Amendment shall have the meanings ascribed to them by the Credit Agreement.


B.The Company, the Administrative Agent and the undersigned Lenders wish to provide for a term loan in the amount of $2,500,000 to be made as Tranche B Term Loan thereunder on the terms and conditions set forth below.


NOW, THEREFORE, in consideration of the  mutual execution  hereof  and  other  good and valuable consideration, the parties hereto agree to amend the Credit Agreement as follows:


1.Amendment of Credit Agreement.


(a)Section 1.01 of the Credit Agreement is hereby amended by deleting the definitions of "Tranche B Upsize Term Loan Commitment" and "Tranche B Upsize  Term Loans" and inserting the following defined terms into Section 1.01 in correct alpha order, as follows:


"Tranche B Upsize Term Loan  Commitment"  means  (a) as  to  any Tranche B Term Lender, the aggregate commitment of such Tranche  B Term Lender to make Tranche B Upsize Term Loans as set forth on Schedule 2.01 or in the most recent Assignment Agreement or other documentation contemplated hereby executed by such Tranche B Term Lender and (b) as to all Tranche B Term Lenders, the  aggregate commitment of all Tranche B Term  Lenders to make Tranche B Upsize Term Loans, which aggregate commitment shall be $9,100,000 on the date of this Agreement. After advancing any Tranche B Upsize Term  Loan, each reference to a Tranche B Term Lender's Tranche B Term Loan Commitment shall refer to that Tranche B Term Lender's Applicable Percentage of the Tranche B Term Loans, including without limitation the Tranche B Upsize Term Loans.















"Tranche B Upsize Term Loans" means the term loans made by the Tranche B Term Lenders to the Borrower as of October 5, 2012 and on or after November 20, 2012 pursuant to Section 2.01.


(b)Clause (d) of Section 2.01 of the Credit Agreement is hereby deleted in its entirety and the following is substituted in its place and stead:


(d) each Tranche B Term Lender with a Tranche B Upsize Term Loan Commitment agrees to make a Tranche B Term Loan to the Borrower in Dollars on October 5, 2012 and on or after November 20,  2012, respectively, in an amount equal to such Lender's Tranche B Upsize Term Loan Commitment by making funds immediately available to the Borrower's designated account, not later than the time specified by the Administrative  Agent.


(c)Section 2.12 of the Credit Agreement  is hereby  amended by  adding the following Subsection 2.12(c):


(c)All principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses (other than fees or expenses that are for Agent's separate account) shall be apportioned ratably among the Lenders having a pro rata share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied to reduce the balance of the Revolving Loans outstanding, if  any, to  make  payments then due and payable with respect to the Term Loans and to pay all other amounts then due under this Agreement and the other Loan Documents, and thereafter, to Borrower or such other Person entitled thereto under applicable law.


(d)Clause (d) of Section 5.09 of the Credit Agreement is hereby deleted in its entirety and the following is substituted in its place and stead:


, (d) with respect to the Tranche B Upsize  Term Loan in the amount of
$6,600,000, to be used by AB Blue Acquisition to loan to  DRABL to finance DRABL's acquisition of all of the issued and outstanding  shares of Aegean Blue Holdings and related closing costs pursuant to the AB Blue Sale and Purchase Agreement and


		
	(e)
	with  respect  to  the  Tranche B  Upsize  Term  Loan  in  the  amount  of


$2,500,000 to be used to make separation payments to the former owners/principals of the Mystic Dunes resorts.


(e)    Section  5.16  of  the  Credit  Agreement  is  hereby  amended  by  deleting "October 31, 2012" and substituting "November 30, 2012" in its place and stead.













(t) Clause (b) of Section 9.02 of the Credit Agreement is hereby deleted in its entirety and the following is substituted in its place and stead:


(b) Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (i) increase the Commitment of any Lender without the written consent of such Lender, (ii) reduce the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees payable hereunder, without the written consent of each Lender directly affected thereby, (iii) postpone the scheduled date of payment of the principal amount of any Loan (other than any reduction of the amount of, or any extension of the payment date for, the mandatory prepayments required under Section 2.07(b), 2.07(c),  2.07(d), 2.07(e) and 2.07(g), in each case which shall only require the approval of the Required Lenders), or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment, the Tranche A Term Loan Maturity Date or the Tranche B Term Loan Maturity Date, without the written consent of each Lender directly affected thereby, (iv) change Section 2.12(b) or (c) in a manner  that would alter the pro rata sharing of payments required thereby, without the written consent of each Lender, (v) change any of the provisions of this Section or the definition of "Required Lenders" or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender, (vi) cause or permit the release or subordination of the Agent's lien in any material portion of the Collateral without the written consent of each Lender or (vii) cause or permit the release of Borrower or any Guarantor from their liabilities and obligations under the Loan Document without the written consent of each Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or  duties  of  the  Administrative Agent without the prior written consent of the Admiistrative Agent.


(g)Schedule 2.01 to the Credit Agreement is hereby amended to include the information in the schedule attached hereto as Schedule 2.01-Supplement #2.


(h)In that certain Third Amendment to Loan and Security Agreement dated as of October 4, 2012, by and among Borrower, the Administrative Agent and the Lenders signatories thereto, all references to "Tranche C" are hereby deleted in their entirety and references to "Tranche B" are substituted in their place and stead.


2.Representations    and   Warranties   of   the   Borrower.      The Borrower represents and warrants that:
(a)The execution, delivery and performance by the Borrower of this Amendment are within the Borrower's powers, have been duly authorized by all necessary organizational  action on the part  of the Borrower,  and do not  and will  not  contravene  (i) the organizational  documents  of the Borrower,  (ii) applicable  law or (iii) any contractual  or legal restriction binding on or affecting the properties of the Borrower or any Subsidiary.


(b)No authorization or approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the Borrower of this Amendment, except any order that has been  duly obtained and is (x) in full force and effect and (y) sufficient for the purposes hereof.







(c)This Amendment is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except  as  the  enforceability thereof may be limited by equitable principles or bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally.


(d)As of the Amendment  Effective Date, there are no Defaults or  Events of Default.


3.Amendment Effective Date.  This Amendment  shall become  effective as of the date hereof (the "Amendment Effective Date") upon the satisfaction of the following conditions precedent:


(a)The Administrative Agent shall have received (i) a  counterpart of this Amendment signed on behalf of the Borrower, the Required Lenders, including each Lender holding a Tranche B Term Loan Commitment and the Guarantor or (ii) written evidence (which may include facsimile or other electronic transmission of a signed signature page of this Amendment) that each such party hereto has signed a counterpart of this Amendment.


(b)The representations  and warranties  set forth in Section 2 hereof  are true and correct.
		
	4.
	Reference to and Effect Upon the Credit Agreement.




(a)Except as specifically amended and supplemented hereby, the Credit Agreement shall remain in full force and effect to the extent in effect immediately prior to this Amendment and is hereby ratified and confirmed.


(b)The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or any Lender under the Credit Agreement, nor constitute a waiver of any provision of the Credit Agreement, except as specifically set forth herein. Upon the effectiveness of this  Amendment,   each reference in the Credit Agreement to "this Agreement'', "hereunder'', "hereof', "herein" or words of similar import shall mean and be a reference to the Credit Agreement as amended and supplemented hereby.


5.Governing Law. This Amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without giving effect to its choice of law provisions.
6.Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when  so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.


[Signature Pages Follow]









IN WITNESS  WHEREOF, the parties have executed this Fourth Amendment to Loan and Security Agreement as of the date first above written.




Borrower:


TEMPUS ACQUISITION,  LLC




By:  __/s/ Yanna Huang_____________    
Name: Yanna Huang
Title:   Treasurer











     Administrative  Agent:


		
	 
	GUGGENHEIM    CORPORATE    FUNDING,   LLC






                        
            By:___/s/ William Hagner__________________
             Name:      William Hagner
    Title:        Senior Managing Director
                     




       Lenders:


NZC  GUGGENHEIM MASTER  FUND LIMITED, as a Lender 


By:Guggenheim Partners Asset Management, LLC, as agent




                        
By:___/s/ William Hagner__________________
             Name:      William Hagner
    Title:        Senior Managing Director
                     


                          


GUGGENHEIM PRIVATE DEBT FUND
NOTE ISSUER LLC, as a Lender


By:Guggenheim Partners Asset Management, LLC, as agent


By:___/s/ William Hagner__________________
             Name:      William Hagner
    Title:        Senior Managing Director
                     


        
                      













WAKE FOREST UNIVERSITY, as a Lender


By: Guggenheim Partners Asset Management,
LLC, as agent






              By:___/s/ William Hagner__________________
             Name:      William Hagner
    Title:        Senior Managing Director
                     




                            
GUGGENHEIM PRIVATE DEBT MASTER
FUND, LLC, as a Lender




By:Guggenheim Partners Asset Management, LLC, as agent






By:___/s/ William Hagner__________________
             Name:      William Hagner
    Title:        Senior Managing Director
                     


            













SILVER ROCK FINANCIAL LLC, as a Lender






By:_____/s/ Ralph Finerman____________________  
Name:         Ralph Finerman  
Title:           Manager 






BDIF LLC, as a Lender






By:_____/s/ Ralph Finerman____________________  
Name:         Ralph Finerman  
Title:           Manager 











Tempus Holdings, LLC, a Delaware limited liability company, is the "Guarantor" named in that certain Guaranty dated as of June 30, 2011 (as amended, restated or otherwise modified from time to time, the "Guaranty"), in favor of Guggenheim Corporate Funding, LLC, as Administrative Agent for itself and for the Lenders under and as defined  in  the  Loan  and Security Agreement dated as of June 30, 2011 (as amended, restated or otherwise modified from time to time, the "Credit Agreement").   Tempus Holdings, LLC hereby  acknowledges  receipt of a copy of the foregoing Fouiih Amendment to Loan and Security Agreement, agrees that references in the Guaranty to the Credit Agreement shall mean the Credit Agreement as amended by said.Fourth Amendment to Loan and Security Agreement and as fmiher amended, restated or otherwise modified from time to time, and confirms the continuing validity of the Guaranty.


Guarantor:


TEMPUS HOLDINGS, LLC








By:__/s/ Yanna Huang_____________    
Name: Yanna Huang
Title:   Treasurer
    
Name:  
  Title:    









 
SCHEDULE 2.01 – SUPPLEMENT #2


LENDERS; COMMITMENTS
	
							
	LENDER
	$6,600,000 
TRANCHE B UPSIZE TERM LOAN COMMITMENT
	$2,500,000
TRANCHE B UPSIZE TERM LOAN COMMITMENT

	 
	 
	 

	NZC Guggenheim Master Fund Limited


	$0
	$0

	Guggenheim Private Debt Fund Note Issuer LLC


	$
	5,652,775
	

	$
	2,141,203
	


	Wake Forest University


	$0
	$0

	Guggenheim Private Debt Master Fund, LLC


	$0
	$0

	Silver Rock Financial LLC


	$
	473,612.28
	

	$
	179,399
	


	BDIF LLC


	$
	473,612.28
	

	$
	179,399
	


	 
	 
	 

	AGGREGATE COMMITMENTS
	$
	6,600,000
	

	2,500,0000