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EXHIBIT 10.17
AMENDMENT NO. 2 TO
LOAN AND SECURITY AGREEMENT
BY THIS AMENDMENT NO. 2 TO LOAN AND SECURITY AGREEMENT ("Amendment")
dated as of December 13, 1995, Ascension Resorts, Ltd., a Texas limited
partnership, d/b/a Silverleaf Resorts, Ltd. ("Borrower"), Ascension Capital
Corporation, a Texas corporation ("Assuming Borrower"), and FINOVA Capital
Corporation, a Delaware corporation, formerly known as 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 a Loan and
Security Agreement dated as of August 12, 1994, as amended by an Amendment No.1
to Loan and Security Agreement ("First Amendment") dated July 24, 1995
(collectively, the "Loan Agreement"), relating to a revolving line of credit
loan in the amount of up to $12,000,000 ("Loan"). All capitalized terms used
but not specifically defined herein shall have the meanings described in the
Loan Agreement.
1.2 Borrower will be merged into its general partner, Assuming
Borrower, and Assuming Borrower will be renamed "Silverleaf Vacation Club,
Inc." pursuant to a merger to be effective on or before December 31, 1995, and
the actual effective date of the merger shall be referred to herein as the
"Merger Date." As a result of the merger, Assuming Borrower will assume
Borrower's existing and ongoing obligations under the Documents, and take title
to all property securing the Loan subject to the liens and security interests
created in favor of Lender pursuant to the Documents.
1.3 Borrower, Assuming Borrower and Lender wish to amend the Loan
Agreement, among other ways, to provide for Lender's consent to the merger, and
provide for certain conditions subsequent to such consent, all as more fully
provided below.
ARTICLE 2 - AGREEMENT
2.1 Subject to the conditions subsequent described in paragraph
2.3 below, in order to satisfy the requirements of Section 6.7(d) of the Loan
Agreement, Lender hereby approves the merger of Borrower into Assuming
Borrower. Lender and Borrower further agree, subject to paragraph 2.3 below,
that on and after the Merger Date, all references to the Borrower in the Loan
Agreement and other Documents shall mean Silverleaf Vacation Club, Inc., a
Texas corporation.
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2.2 Effective as of the Merger Date, Assuming Borrower hereby
absolutely and unconditionally assumes all of the Borrower's
Obligations under the Loan Documents, and without limiting the
generality of such assumption, covenants, promises and agrees:
(i) to pay the Note at the time(s) and in the
manner as provided therein;
(ii) to perform each and all of the covenants,
agreements and obligations to be performed by Borrower under
the Documents; and
(iii) to be bound by each and all of the terms and
provisions of, and to perform each and all of the Obligations
of Borrower under, the Documents.
Assuming Borrower acknowledges and agrees that this assumption is part of the
consideration for Lender's consent to the merger of Borrower into Assuming
Borrower.
2.3 Lender's obligation to make Advances of the Loan on and after
the Merger Date, and Lender's consent to the merger of Borrower into Assuming
Borrower is conditioned upon satisfaction of the following no later than
fifteen (15) days after the Merger Date:
(a) Lender's receipt of:
(i) a certified copy of the Articles of Merger,
Certificate of Merger, and any other documents required to
effectuate the merger of Borrower into Assuming Borrower,
including without limitation, all limited partner approvals
required for such merger; and
(ii) a resolution or certificate from Borrower and
Assuming Borrower authorizing (A) the execution and delivery
of this Amendment and the other documents called for in this
Amendment or requested by Lender pursuant to this paragraph
("Modification Documents") and (B) the transactions
contemplated hereby.
(b) Lender's receipt of a written opinion by counsel to
Borrower and Assuming Borrower acceptable to Lender in the form of
Exhibit A hereto; and
(c) Assuming Borrower's delivery, as Borrower under the
Loan, of such amendments to recorded and filed Documents as Lender may
deem necessary, including without limitation, additional UCC-1
financing statements and amendments to UCC-1 financing statements, and
such further instruments as are necessary or desirable to effect the
intent of this Amendment and to secure to Lender the benefits of all
rights and
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remedies conferred upon Lender by the terms of this Amendment and any
other documents executed in connection herewith.
2.4 Subject to the remaining provisions of this paragraph,
Borrower and Assuming Borrower will on demand pay or, at Lender's election,
reimburse Lender for all Lender's attorneys' fees and other out-of-pocket
expenses in connection with the documentation and closing of this Amendment.
2.5 Borrower confirms and restates to Lender as of the date hereof
all its representations and warranties set forth in the Loan Agreement, as
amended hereby, and the other documents executed by Borrower evidencing,
securing or otherwise pertaining to the Loan ("Documents"). Borrower reaffirms
all liens and security interests granted by it to Lender, and Borrower and
Assuming Borrower agree that such liens and security interests shall continue
to secure the Loan. Borrower and Assuming Borrower further acknowledge that
Lender has performed and is not in default of its Obligations under the
Documents and that there are no offsets, defenses or counterclaims with respect
to any of Borrower's Obligations under the Documents. In addition, Assuming
Borrower hereby represents and warrants that its sole business activity and
function to date has been to act as the general partner of Borrower, and that
upon consummation of the merger described herein, the limited partner(s) of
Borrower shall receive shares of Assuming Borrower in exchange for their
limited partnership interests in Borrower, and that such limited partners shall
not be merged into Assuming Borrower.
2.6 This Amendment may not be amended or otherwise modified except
in a writing duly executed by the parties hereto.
2.7 This Amendment constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and this
Amendment and the Documents, as amended hereby, supersede all prior written or
oral understandings and agreements between the parties in connection with its
subject matter; provided, however, that if the Merger Date has not occurred by
January 15, 1996, this Amendment shall be of no force or effect and the
relationship of the parties hereto shall continue to be governed by the Loan
Agreement without giving effect hereto.
2.8 All Schedules and Exhibits referred to herein are herein
incorporated by this reference.
2.9 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.
2.10 Borrower, Assuming 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.
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IN WITNESS WHEREOF this instrument is executed as of the date set
forth above.
"BORROWER"
ASCENSION RESORTS, LTD., a Texas
limited partnership, d/b/a Silverleaf
Resorts, Ltd.
By: ASCENSION CAPITAL CORPORATION, a
Texas corporation
Its: General Partner
BY: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Its: Chief Executive Officer
"ASSUMING BORROWER"
ASCENSION CAPITAL CORPORATION, a
Texas corporation
BY: /s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
Its: Chief Executive Officer
"LENDER"
FINOVA Capital Corporation,
a Delaware corporation,
formerly known as
Greyhound Financial Corporation
By: /s/ XXXX XXXXXX, III
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Print Name: XXXX XXXXXX,III
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Title: GROUP VICE PRESIDENT
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CONSENT OF GUARANTOR
The undersigned Xxxxxx X. Xxxx ("Guarantor"), hereby consents to the
execution of the foregoing Amendment, and the Merger described therein, and
acknowledges that it is his desire to fully guarantee the payment and
performance in full of the loan made or to be made pursuant to the terms of the
Loan Agreement and the other Documents, as amended by the Amendment in
accordance with the terms and conditions of the Guarantee, Indemnity and
Subordination Agreement (Full) dated as of August 12, 1994 ("Guarantee"),
executed by Guarantor in favor of Lender.
Guarantor hereby: (a) reaffirms and restates as of the date hereof all
of Guarantor's covenants, representations and warranties set forth in the
Guarantee; (b) represents and warrants that no event has occurred and no
condition currently exists that would constitute a default under the Guarantee
by Guarantor or under the Loan Agreement or any other Document by Borrower or
any other surety; and (c) acknowledges that Lender has performed and is not in
default of its obligations under the Documents and that there are no offsets,
defenses or counterclaims with respect to any obligation of Borrower under the
Documents or of Guarantor under the Guarantee.
This instrument is executed for the benefit of Lender, its successors
and assigns. Guarantor acknowledges that it has received good and valuable
consideration for the execution of this instrument and Guarantor's
representations, warranties and covenants contained in this instrument.
IN WITNESS WHEREOF, Guarantor has executed this instrument to be
effective as of the 13th day of December, 1995.
GUARANTOR
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
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CONSENT OF SUBORDINATING PARTIES
The undersigned FREEDOM FINANCIAL CORP., a Texas corporation, and
CONDOMINIUM BUILDERS, INC., a Texas corporation ("Subordinating Parties")
hereby consent to the foregoing Amendment and hereby reaffirm, as of the date
hereof, the terms and conditions set forth in the Subordination And Standstill
Agreement dated August 12, 1994 executed by Subordinating Parties in favor of
Lender, and jointly and severally acknowledge and agree that any and all
obligations of Borrower and Assuming Borrower to any of them, and all security
therefor, shall at all times remain subordinate to Borrower's and Assuming
Borrower's Obligations to Lender under the Loan Documents, as modified by the
foregoing Amendment.
IN WITNESS WHEREOF, Subordinating Parties have executed this Consent
to be effective as of the 13th day of December, 1995.
SUBORDINATING PARTIES: FREEDOM FINANCIAL CORP., a Texas
corporation
By /s/ XXXXXX X. XXXX
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Its President
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CONDOMINIUM BUILDERS, INC., a Texas
corporation
By /s/ XXXXXX X. XXXX
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Its President
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