THIRD AMENDMENT TO LOAN AND SECURITY AGREEMENT-RECEIVABLES
Ex
10.1
THIRD
AMENDMENT TO LOAN
AND SECURITY
AGREEMENT-RECEIVABLES
This
Third Amendment to Loan and Security Agreement – Receivables (this “Third Amendment”) is made and
entered into this 18th day of
September, 2008 by and among SILVERLEAF RESORTS, INC., a
Texas corporation (“Borrower”); the parties,
including ▇▇▇▇▇ FARGO FOOTHILL,
INC., a California corporation, who have executed the Original Loan
Agreement (as hereinafter defined) or a joinder agreement thereto in their
respective capacities as lenders (collectively the “Lenders” and individually a
“Lender”); and ▇▇▇▇▇ FARGO FOOTHILL, INC., a
California corporation, in its capacity as facility agent and as collateral
agent (“Agent”).
W I T N E S S E T
H
WHEREAS, Borrower, Lenders and
Agent have heretofore entered into that certain Loan and Security Agreement –
Receivables dated as of December 16, 2005 (the “Original Loan Agreement”)
pursuant to which Lenders agreed to make a revolving credit loan secured by,
among other things, Pledged Notes Receivables (as defined in the Original Loan
Agreement), which Original Loan Agreement has been heretofore amended pursuant
to (a) that certain First Amendment to Loan and Security Agreement – Receivables
dated as of October 6, 2006, (b) that certain letter modification agreement
dated March 1, 2007 from Borrower to ▇▇▇▇▇ Fargo Foothill, Inc. and (c) that
certain Second Amendment to Loan and Security Agreement-Receivables dated June
4, 2008 (the Original Loan Agreement, as amended by said First Amendment, letter
Second Amendment, is hereinafter called the “Loan Agreement” and the loan
made pursuant to the Loan Agreement is hereinafter called the “Loan”); and
WHEREAS, Borrower, Lenders and
Agent have heretofore entered into a Loan and Security Agreement – Inventory
dated as of December 16, 2005 (the “Original Inventory LSA”)
pursuant to which Lenders agreed to make a revolving credit loan secured by,
among other things, certain Intervals (as defined in the Original Inventory
LSA), which Original Inventory LSA was amended by (a) that certain First
Amendment to Loan and Security Agreement Inventory dated as of October 6, 2006
and (b) that certain Second Amendment to Loan and Security Agreement-Inventory
dated June 4, 2008 (the Original Inventory LSA, as amended by said First
Amendment and Second Amendment, is hereinafter called the “Inventory LSA” and the loan
made pursuant to the Inventory LSA is hereinafter called the “Additional Credit Facility”);
and
WHEREAS, although each of the
Loan Agreement and the Inventory LSA contemplate that there could be a number of
parties acting as Lender thereunder, ▇▇▇▇▇ Fargo Foothill, Inc. (“WFF”) is the sole party acting
as lender under each such agreement; and
WHEREAS, as contemplated by
the Second Amendment-Receivables, WFF purchased from Silverleaf Finance VI, LLC,
a Delaware limited liability company (“SL VI”) and an affiliate of
Borrower, a portion of the timeshare loan-backed notes (the “TLB Notes”) being issued by
SL VI in connection with a securitization that SL VI undertook;
and
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WHEREAS, Borrower has
heretofore paid off the Additional Credit Facility in full, and in consideration
thereof, WFF is willing to amend the Loan to extend each of the Revolving Loan
Period and Revolving Loan Term and increase the amount of the Commitment under
the Loan Agreement and therefore, to amend the Loan Agreement to accomplish that
in the manner hereinafter provided.
NOW THEREFORE, in
consideration of the mutual covenants and agreements contained in the Loan
Agreement and in this Third Amendment and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties to this Third Amendment, intending to be legally bound, agree as
follows:
1.
Integration
of Third Amendment and Loan Agreement. This Third Amendment
and the Loan Agreement shall, for all purposes, be deemed to be one
instrument. In the event of any conflict between the terms and
provisions of this Third Amendment and the terms and provisions of the Loan
Agreement, the terms and provisions of this Third Amendment shall, in all
instances, control and prevail. Except as expressly defined herein,
all words and phrases which are defined in the Loan Agreement shall have the
same meaning in this Third Amendment as are ascribed to said words and phrases
in the Loan Agreement.
2.
Section 1 Definition of
Terms
(a)
Commitment. The
last sentence of the defined term “Commitment” is hereby deleted and is hereby
replaced with the following:
“From and
after the Third Amendment Effective Date until such time as the aggregate amount
outstanding under the TLB Notes falls below $25,000,000.00, the maximum
aggregate outstanding Commitment at any time during such period, shall be the
amount by which (i) $75,000,000.00 exceeds (ii) the aggregate amount outstanding
under the TLB Notes and thereafter, during the remainder of the Term the maximum
aggregate Commitment at any time shall be $50,000,000.00”
(b)
Clause (i) in the definition of "Eligible Notes
Receivable" is hereby deleted and is hereby replaced with the
following:
"(i) the
first payment under each Note Receivable must be due and payable to Borrower
within 65 days of the date such Note Receivable was executed, no monthly
installment is more than thirty (30) days contractually past due at the time of
an Advance in respect of such Note Receivable, nor more than sixty (60) days
contractually past due at any time;"
(c)
The definition of “Final Maturity Date” is hereby
deleted and is hereby replaced with the following:
“Final
Maturity Date: The term “Final Maturity Date” shall
mean August 31, 2014.”
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(d)
The definition of “Note” is hereby deleted and is
hereby replaced by the following:
“Note: That
certain Second Modified Promissory Note-Receivables in the form of Exhibit A
attached hereto."
(e)
The definition of “Revolving Loan Period” is
hereby deleted and is hereby replaced with the following:
“Revolving
Loan Period. The period during the term in which Borrower may
borrow, repay and re-borrow Advances which shall terminate on August 31,
2011.”
(f)
The definition of “Revolving
Loan Term” is hereby deleted and is hereby replaced with the
following:
“Revolving
Loan Term. Shall mean the period commencing on the Closing
Date and ending on August 31, 2011.”
(g)
The following definition of “Third
Amendment Effective Date” is hereby added:
“Third
Amendment Effective Date: shall mean the date that Borrower
has satisfied or Agent has waived each of the conditions set forth in Section 11
of the Third Amendment.”
3. Section
2.1.
(a)
The last sentence of the first grammatical paragraph of
Section 2.1(a) is hereby deleted and is hereby replaced with the
following:
“The
Revolving Loan Period shall be the period during the Term when Borrower may
borrow, pay and re-borrow Advances and shall terminate on August 31,
2011.”
(b)
The first sentence of Section 2.1(d) is hereby amended
to delete “of $50,000,000.00” and to replace it with “equal to the amount of the
Commitment.”
4.
Section
2.4.
(a)
Clause (i) set forth in Section 2.4(a) of the Loan Agreement
is hereby deleted and is hereby replaced with the following:
“(i) shall
not be permitted prior to August 31, 2009,”
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(b)
The chart in Section 2.4(c) regarding the prepayment
premium is hereby deleted and is hereby replaced with the
following:
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Date of Prepayment
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Premium
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9/1/2009
to 8/31/2010
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Three
percent (3%) of the then outstanding balance of the Loan
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9/1/2010
to 8/31/2011
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Two
percent (2%) of the then outstanding balance of the Loan
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On
or after 9/1/2011
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One
percent (1%) of the then outstanding balance of the Loan”
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5.
Section
2.6. Section 2.6 of
the Loan Agreement is hereby amended to add the following:
“In
addition to the fees set forth in the Fee Letter and in consideration of the
Lenders agreeing to amend the Loan as provided in this Third Amendment, Borrower
shall pay Lender a fee (the “Third Loan Amendment Fee”) in
the amount of $125,000.00 on or before the Third Amendment Effective
Date.”
6.
Section
5.1(b): The second sentence of the last paragraph of Section
5.1(b) is hereby deleted and is hereby replaced with the following:
"The
Mortgagee's Title Policies shall be in form and substance satisfactory to Agent
and shall be issued by a title insurance company satisfactory to Agent (the
"Title Company"), and
name Borrower as the insured party therein.
7.
Section
7.1(y):
(a)
Section 7.1(y)(i) is hereby deleted and is hereby
replaced with the following:
“(i) Tangible
Net Worth. Borrower shall, on and after the Third Amendment
Effective Date, at all times have and maintain a Tangible Net Worth of
$150,000,000.00.”
(b)
Section 7.1(y)(ii) is hereby deleted and is hereby
replaced with the following:
“(ii) Marketing
and Sales Expenses. As of the last day of each fiscal quarter,
commencing with the fiscal quarter ending September 30, 2008, Borrower will not
permit the four quarter cumulative ratio of Marketing and Sales Expenses to
Borrower’s net proceeds from the sale of Intervals as recorded on Borrower’s
financial statements for the immediately preceding four (4) consecutive fiscal
quarters to equal or exceed a ratio of .62 to 1.”
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8.
Schedule
1.0. The “Lender’s Committed Amount” as set forth on Schedule
1.0 attached to the Loan Agreement is hereby deleted and is hereby replaced with
the following:
“For the
period from the Third Amendment Effective Date until such time as the aggregate
amount outstanding under the TLB Notes is less than $25,000,000.00, the amount
by which (i) $75,000,000.00 exceeds (ii) the aggregate amount outstanding under
the TLB Notes and thereafter, $50,000,000.00.”
9.
Amendment
and Substitution of First Modified Promissory
Note-Receivables. As of the Third Amendment Effective Date,
the First Modified Promissory-Note-Receivables dated as of October 6, 2006 shall
be deleted and the form of Second Modified Promissory Note-Receivables attached
hereto as Exhibit A shall be utilized in lieu thereof. By Borrower’s
signature to this Third Amendment and the delivery to Lender of an originally
executed Second Modified Promissory Note-Receivables, Borrower shall be deemed
to have agreed to such substitution and replacement and Borrower shall be deemed
to have authorized to Lender to ▇▇▇▇ the First Modified Promissory
Note-Receivables “Modified, Substituted and Replaced by a Second Modified
Promissory Note-Receivables dated September 18, 2008” and to
attach physically by staple the First Modified Promissory Note-Receivables,
after being so marked, to the back of the Second Modified Promissory
Note-Receivables.
10. Inventory
LSA – Additional Credit Facility. As Borrower has heretofore
fully repaid the Additional Credit Facility, the parties hereby agree that the
Additional Credit Facility and the Inventory LSA are hereby
terminated.
11. Conditions
to Effectiveness. The effectiveness of this Third Amendment
and the agreements of Lender set forth herein, are subject to the satisfaction
of the following conditions precedent, all in form, scope and substance
satisfactory to Lender in its sole discretion (the date on which such conditions
shall have been satisfied being referred to herein as the “Third
Amendment Effective Date”):
(a)
Borrower shall have paid Agent the Third Loan Amendment Fee
($125,000.00).
(b)
Lender shall have received each of the following,
and, where applicable, duly executed by each party thereto, other than
Lender:
(i)
This Third Amendment and the Second Modified Promissory
Note-Receivables; and
(ii)
a certificate from the principal financial officer of
Borrower attesting to no change to the Articles of Incorporation or By Laws of
Borrower since December 16, 2005 and/or providing an updated copy of any such
changes; and
(iii) A
resolution from Borrower authorizing the changes to the financing relationship
with Lender as contained in this Third Amendment; and
(iv) a
certificate from the principal financial officer of Borrower attesting to no
changes to the TFC Documents or the TFC Conduit Loan since June 4, 2008 and no
changes to the CSF Documents or the UBS Documents since June 4, 2008 or, to the
extent there have been changes, attaching copies of said changes, together with
revised versions of Schedules 1.1(b), 1.1(f) and 1.1(h), as applicable;
and
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(v) All
other documents Lender may request with respect to any matter relevant to this
Third Amendment or the transactions contemplated hereby.
(c)
The representations and warranties contained
herein and in the Loan Agreement and the other documents executed in connection
with the Loan Agreement (herein referred to as “Loan
Documents”), as each is amended hereby, shall be true and correct as of
the date hereof, as if made on the date hereof, except for such representations
and warranties as are by their express terms limited to a specific
date.
(d)
No Default or Event of Default shall have occurred
and be continuing.
(e)
All corporate proceedings taken in connection with the
transactions contemplated by this Third Amendment and all documents, instruments
and other legal matters incident thereto shall be satisfactory to
Lender.
(f)
Borrower shall have paid Lender all fees, costs and
expenses incurred by Lender in preparation and execution of this Third Amendment
and in connection with all matters referred to herein.
12. Ratifications. The
terms and provisions set forth in this Third Amendment shall modify and
supersede all inconsistent terms and provisions set forth in the Loan Agreement
and the other Loan Documents, and, except as expressly modified and superseded
by this Third Amendment the terms and provisions of the Loan Agreement and the
other Loan Documents are ratified and confirmed and shall continue in full force
and effect. Borrower and Lender agree that the Loan Agreement and the
other Loan Documents, as amended hereby, shall continue to be legal, valid,
binding and enforceable in accordance with their respective
terms. This Third Amendment is not intended to be or to create, nor
shall it be construed as or constitute, a novation or an accord and satisfaction
but shall constitute an amendment of the Loan Agreement.
13. Representations
and Warranties. Borrower hereby represents and warrants to
Lender that (a) the execution, delivery and performance of this Third Amendment
and any and all other Loan Documents executed and/or delivered in connection
herewith have been authorized by all requisite corporate action on the part of
Borrower and will not violate the Articles of Incorporation or Bylaws of
Borrower; (b) Borrower’s Board of Directors has authorized the execution,
delivery and performance of this Third Amendment and any and all other Loan
Documents executed and/or delivered in connection herewith; (c) the
representations and warranties contained in the Loan Agreement, as amended
hereby, and any other Loan Document are true and correct on and as of the date
hereof and on and as of the date of execution hereof as though made on and as of
each such date; (d) no Default or Event of Default under the Loan Agreement, as
amended hereby, has occurred and is continuing or exists which with the lapse or
passage of time would be or become a Default or Event of Default; (e) Borrower
is in full compliance with all covenants and agreements contained in the Loan
Agreement and the other Loan Documents, as amended hereby, (f) Borrower has not
amended its Articles of Incorporation or Bylaws since December 16, 2005; (g) the
execution, delivery and performance of this Third Amendment and the Loan
Documents executed in connection herewith by Borrower are within its powers,
have been duly authorized, and do not contravene (i) its articles of
incorporation or other organization documents, or (ii) any applicable law; and
(h) no consent, license, permit, approval or authorization of, or registration,
filing or declaration with, any governmental authority or other Person, is
required in connection with the execution, delivery, performance, validity or
enforceability of this Third Amendment or the Loan Documents executed in
connection herewith, as applicable, by or against Borrower.
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14. Survival
of Representations and Warranties. All representations and
warranties made herein and in the Loan Agreement or any other Loan Document,
including, without limitation, any document furnished in connection with this
Third Amendment, shall survive the execution and delivery of this Third
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.
15. Reference
to Loan Agreement. Each of the Loan Agreement and the other
Loan Documents, and any and all other documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof or pursuant to the terms of
the Loan Agreement, as amended hereby, are hereby amended so that any reference
in the Loan Agreement and such other Loan Documents to the Loan Agreement shall
mean a reference to the Loan Agreement, as amended hereby.
16. Severability. If
any term or provision of this Third Amendment is adjudicated to be invalid under
applicable laws or regulations, such provision shall be inapplicable to the
extent of such invalidity without affecting the validity or enforceability of
the remainder of this Third Amendment which shall be given effect so far as
possible.
17. Successors
and Assigns. This Third Amendment is binding upon and shall
inure to the benefit of Lender, all future holders of any Note and all assignees
and transferees, and each of their respective successors and permitted
assigns. Borrower may not assign or transfer any of its rights or
obligations hereunder or under any of the other Loan Documents without the prior
written consent of Lender.
18. Counterparts. This
Third Amendment may be executed in one or more counterparts, all of which taken
together shall constitute but one and the same instrument. This Third
Amendment may be executed by facsimile transmission, which facsimile signatures
shall be considered original executed counterparts for purposes of this Section
18, and each party to this Third Amendment agrees that it will be bound by its
own facsimile signature and that it accepts the facsimile signature of each
other part to this Third Amendment.
19. Effect of
Waiver. No consent or waiver, express or implied, by Lender to
or for any breach of or deviation from any covenant or condition by Borrower
shall be deemed a consent to or waiver of any other breach of the same or any
other covenant, condition or duty.
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20. Headings. The
headings, captions, and arrangements used in this Third Amendment are for
convenience only and shall not affect the interpretation of this Third
Amendment.
21. Applicable
Law. THIS THIRD AMENDMENT AND ALL OTHER LOAN DOCUMENTS
EXECUTED PURSUANT HERETO SHALL BE DEEMED TO HAVE BEEN MADE AND TO BE PERFORMABLE
IN AND SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
CHOICE OF LAW PROVISIONS SET FORTH IN THE LOAN AGREEMENT AND SHALL BE SUBJECT TO
NOTICE PROVISIONS OF THE LOAN AGREEMENT.
22. Final
Agreement. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS,
EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS THIRD AMENDMENT IS
EXECUTED. THE LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED
HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION,
WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS THIRD AMENDMENT SHALL BE
MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND LENDER.
23. Release
by Borrower. By execution of this Third Amendment, Borrower
acknowledges and confirms that Borrower does not have any offsets, defenses or
claims against Lender, or any of its present or former subsidiaries, affiliates,
officers, directors, shareholders, employees, agents, representatives,
attorneys, predecessors, successors or assigns whether asserted or unasserted.
To the extent that Borrower may have such offsets, defenses or claims, Borrower
and each of its successors, assigns, parents, subsidiaries, affiliates,
predecessors, employees, agents, heirs, executors, as applicable, jointly and
severally, knowingly, voluntarily and intentionally waive, release and forever
discharge Lender, its subsidiaries, affiliates, officers, directors,
shareholders, employees, agents, attorneys, predecessors, successors and
assigns, both present and former (collectively the “Lender
Affiliates”) of and from any and all actual or potential claims, demands,
damages, actions, requests for sanctions and causes of action, torts,
obligations, suits, debts, controversies, damages, judgments, executions, claims
and demands whatsoever, all other liabilities whether known or unknown, matured
or unmatured, contingent or absolute, of any kind or description whatsoever,
either in law or in equity or otherwise, asserted or unasserted against Lender
and/or Lender Affiliates, Lender as Agent or Lender in any other capacity, which
they ever had, now have, claim to have or may later have or which any of any
Borrower’s successors, assigns, parents, subsidiaries, affiliates, predecessors,
employees, agents, heirs, and/or executors, as applicable, both present and
former, ever had, now has, claim to have or may later have, upon or by reason of
any manner, cause, causes or thing whatsoever, including, without limitation,
any presently existing claim or defense whether or not presently suspected,
contemplated or anticipated, and Borrower hereby agrees that Borrower is
collaterally estopped from asserting any claims against Lender or any of the
Lender Affiliates relating to the foregoing.
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IN WITNESS WHEREOF, this Third
Amendment to Loan and Security Agreement – Receivables has been executed and is
effective as of the date first above written.
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BORROWER:
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SILVERLEAF RESORTS, INC.,
a Texas corporation
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By:
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/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Chief
Financial Officer
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STATE OF
TEXAS
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)
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) ss.
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COUNTY OF
DALLAS
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)
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The
foregoing instrument was acknowledged before me this 18th day of
September, 2008 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer of Silverleaf
Resorts, Inc., a Texas corporation, on behalf of the Corporation.
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/S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Notary
Public
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My
Commission Expires:
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LENDER:
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▇▇▇▇▇ FARGO FOOTHILL,
INC., a California corporation
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By:
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/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title:
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VP
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STATE OF
TEXAS
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)
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)
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COUNTY OF
DALLAS
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)
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The
foregoing instrument was acknowledged before me this 19
day of September, 2008 by ▇▇▇▇▇▇ ▇▇▇▇▇▇, VP of ▇▇▇▇▇ FARGO FOOTHILL, INC., a
California corporation, on behalf of the corporation.
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/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Notary
Public:
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My
Commission Expires:
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List of
Exhibits to Agreement not Filed Herewith:
Exhibit
A--form of Second Modified Promissory Note--Receivables
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