Exhibit 10.2
FOURTH AMENDMENT TO
RECEIVABLES LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO RECEIVABLES
LOAN AND SECURITY AGREEMENT (this “ Amendment
”) is dated as of June 4, 2008 (the “
Closing Date ”), by and between
CAPITALSOURCE FINANCE LLC , a Delaware limited liability
company, as secured party (herein referred to as the “
Lender ” ) and SILVERLEAF RESORTS,
INC. , a Texas corporation, as debtor (herein referred to as
the “ Borrower ” ).
RECITALS
A. Borrower and Lender have
entered into that certain Receivables Loan and Security Agreement,
dated as of April 29, 2005 (as amended and modified from time
to time, the “ Loan Agreement ”).
B. The Borrower and Lender
desire to amend the Loan Agreement on the terms and conditions 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, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE I
Definitions
1.01 Capitalized terms used
in this Amendment are defined in the Loan Agreement, as amended
hereby, unless otherwise stated.
ARTICLE II
Amendments to Loan Agreement
Effective as of the date hereof, the
Loan Agreement is hereby amended as follows:
2.01 Amendment to
Section 1.51 . The definition of “Inventory
Loan” set forth in Section 1.51 of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
“1.51
Inventory Loan . That certain senior mortgage loan provided
by Lender to Borrower pursuant to the Inventory Loan Agreement in
the maximum principal amount of $50,000,000.”
Fourth Amendment to Receivables Loan and Security
Agreement
2.02 Amendment to Section 1.52 . The
definition of “Inventory Loan Agreement” set forth in
Section 1.52 of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
“1.52
Inventory Loan Agreement . That certain Amended and Restated
Inventory Loan and Security Agreement, dated as of April 28,
2006, by and between Borrower and Lender, as amended from time to
time.”
2.04 Amendment to Section 1.63 . The
definition of “Maturity Date” set forth in
Section 1.63 of the Loan Agreement is hereby amended
and restated in its entirety to read as follows:
“1.63
Maturity Date . June 30, 2010, subject to
Borrower’s right to extend the Maturity Date set forth in
Section 2.12 hereof.”
2.05 Amendment to Section 1 . The
definition of “Prime Rate” set forth in Section
1 of the Loan Agreement is hereby amended and restated in its
entirety as follows:
“
Prime Rate . The ‘Prime’ rate of interest
published each Business Day in The Wall Street Journal as
the ‘Prime Rate.’ The Prime Rate shall adjust daily and
automatically without notice to Borrower. If more than one
‘Prime Rate’ is published in The Wall Street
Journal for a day, the highest of such ‘Prime
Rates’ shall be used. If The Wall Street Journal is no
longer published or ceases to publish the ‘Prime Rate’,
Lender may substitute another publication publishing the
‘Prime Rate’, reasonably acceptable to Lender. If
‘Prime Rates’ are no longer generally published or are
limited, regulated or administered by a governmental or
quasi-governmental body, Lender may substitute another rate
approximating the ‘Prime Rate’. Notwithstanding the
foregoing, in no event shall the Prime Rate be less than five and
one-half percent (5.50%).”
2.06 Amendment to Section 1.100 . The
definition of “Unused Line Fee” set forth in
Section 1.100 of the Loan Agreement is hereby amended
to delete the last sentence therein in its entirety.
2.07 Amendment to Section 2.11 .
Section 2.11 of the Loan Agreement is hereby deleted
and replaced with “Intentionally Omitted”.
2.08 Amendment to Section 2 .
Section 2 of the Loan Agreement is hereby amended to
add the following Section 2.12 thereto in its entirety
as follows:
“2.12
Extension Option . Borrower may request that Lender extend
the Maturity Date of the Loan for one (1) additional term of
twelve calendar months in accordance with the requirements below.
Such extension request shall be granted to Borrower upon the
satisfaction of the following conditions:
Fourth Amendment to Receivables Loan and Security
Agreement
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(a)
Borrower shall have delivered to Lender a written request to extend
the Maturity Date at least sixty (60), but not more than ninety
(90) calendar days prior to the original Maturity Date;
(b)
Borrower shall have delivered to Lender concurrently with making
the written extension request in clause (a) above an extension
fee equal to the product of 0.25% and the Maximum Loan
Amount;
(c)
no Default or Event of Default shall have occurred at the time of
making the extension request or the commencement of the extension
term;
(d)
Borrower shall have executed any reasonable agreements, documents
or amendments to Loan Documents reasonably requested by
Lender;
(e)
during the extended term, all terms and conditions of the Loan
Documents (other than the original termination of the Maturity Date
or this extension option) shall continue to apply; and
(f)
Borrower shall pay all out-of-pocket costs and expenses incurred by
Lender in connection with such extension and Lender’s
reasonable attorneys’ fees.”
ARTICLE III
Conditions Precedent
3.01 Conditions to Effectiveness . The
effectiveness of this Amendment is subject to the satisfaction of
the following conditions precedent in a manner satisfactory to
Lender, unless specifically waived in writing by Lender:
(a)
Lender shall have received this Amendment, duly executed by
Borrower and Lender.
(b)
Lender shall have received that certain Second Amendment to Amended
and Restated Inventory Loan and Security Agreement between Borrower
and Lender, duly executed by Borrower and Lender.
(c)
Lender shall have received a commitment and extension fee equal to
$200,000.
(d)
Lender shall have received a copy of the resolutions in form and
substance reasonably satisfactory to Lender, of the board of
directors of Borrower authorizing the execution, delivery and
performance of this Amendment, certified by the secretary of the
Borrower as of the Closing Date, and such certificate shall state
that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such
certificate.
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Agreement
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(e)
The representations and warranties contained herein and in the Loan
Agreement, as amended hereby, and the Loan Documents, shall be true
and correct as of the date hereof, as if made on the date
hereof.
(f)
No Default or Event of Default shall have occurred and be
continuing, unless such Default or Event of Default has been
otherwise specifically waived in writing by Lender.
(g)
All corporate and other proceedings, and all documents, instruments
and other legal matters in connection with the execution of this
Amendment shall be satisfactory in form and substance to Lender and
its counsel.
ARTICLE IV
No Waiver
4.01 No Waiver
. Borrower is hereby notified that irrespective of
(i) any waivers or consents previously granted by Lender
regarding
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