Ex. 10.2
SECOND AMENDMENT TO
AMENDED AND RESTATED
LOAN AND SECURITY
AGREEMENT
(Inventory
Loan)
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT , dated as
of October 26, 2005, (the “Second Amendment”) entered
into by SILVERLEAF RESORTS, INC. , a Texas
corporation, (as “Borrower”), and TEXTRON
FINANCIAL CORPORATION , a Delaware corporation (as
“Lender”).
WITNESSETH:
WHEREAS,
Borrower is engaged in the business of acquiring, constructing,
developing, owning, managing, selling and otherwise dealing with
Intervals at the Resorts (as each such term is hereafter
defined);
WHEREAS, Lender
and Borrower are parties to that certain Loan and Security
Agreement, dated as of December 16, 1999, as amended by that
certain First Amendment to Loan and Security Agreement, dated as of
April 17, 2001, as further amended by that certain Second Amendment
to Loan and Security Agreement, dated as of April 30, 2002, as
further amended by that certain Letter Amendment, dated as of March
27, 2003, and as further amended by that certain Third Amendment to
Loan and Security Agreement (Inventory Loan), dated as of December
19, 2003 (collectively, the “ Original Loan
Agreement ”);
WHEREAS,
pursuant to the Original Loan Agreement, Lender agreed, subject to
the terms and conditions of the Original Loan Agreement, to provide
to Borrower, for the purpose of providing liquidity in connection
with Borrower’s ownership, purchase and warehousing of
Intervals (as such term is hereinafter defined), a loan in the
maximum amount of $10,000,000 (the “ Existing
Inventory Loan ”), which loan is evidenced by
Borrower’s Amended and Restated Secured Promissory Note,
dated as of April 30, 2002 (the “ Existing
Note ”);
WHEREAS, Lender
and Borrower further amended and restated the Original Loan
Agreement in its entirety pursuant to an Amended and Restated Loan,
Security and Agency Agreement dated as of March 5, 2004, as amended
by that certain Letter Amendment, dated as of April 16, 2004, and
as further amended by that certain Letter Amendment, dated as of
July 30, 2004 (the “ Restated Loan Agreement
”);
WHEREAS,
pursuant to the Restated Loan Agreement, Lender agreed, subject to
the terms and conditions of the Restated Loan Agreement, to provide
to Borrower, for the purpose of providing liquidity in connection
with Borrower’s ownership, purchase and warehousing of
Intervals, to make an additional inventory loan to the borrower in
the maximum amount of $8,000,000 (the “ New
Inventory Loan ”). The Existing Inventory Loan
and the New Inventory Loan are evidenced by the Existing Note, in
the original principal amount of Ten Million Dollars ($10,000,000)
and the Borrower’s Secured Promissory Note, dated March 5,
2004, in the original principal amount of Eight Million Dollars
($8,000,000);
WHEREAS,
Borrower requested and Lender agreed, that Lender provide an
additional inventory loan to Borrower in the maximum amount of
$5,000,000 (the “ Inventory Term Loan
,” which Inventory Term Loan together with the Existing
Inventory Loan and the New Inventory Loan are collectively, the
“ Loan ”) for the purpose of repaying
the Term Loan Components of the Additional Credit Facility and
Existing Credit Facilities;
WHEREAS,
pursuant to that certain First Amendment to Amended and Restated
Loan and Security Agreement (Inventory Loan) dated as of February
28, 2005 (the “ First Amendment
”) Lender and Borrower agreed to, among other things,
increase the Inventory Loan to $21,000,000, (the Restated Loan
Agreement as amended by the First Amendment and as may be amended
from time to time, the “ Inventory Loan
Agreement ”), and such increase in the Inventory
Loan is evidenced by that certain Secured Promissory Note
(Inventory Term Loan) dated February 28, 2005 in the original
principal amount of $5,000,000.00 (the “ Inventory
Term Loan Note ”); and
WHEREAS,
Borrower has requested and Lender has agreed, subject to the terms
and conditions herein, to extend the period during which borrower
may obtain advances pursuant to the Restated Loan Agreement as
amended by the First Amendment and as further amended by this
Second Amendment (collectively, the “ Loan
Agreement ” ) and to extend the Final Maturity
Date under the Loan Agreement.
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Terms
. All capitalized terms not
otherwise defined herein shall have the meaning ascribed to such
terms in the Loan Agreement.
2.
Definitions . Provided that no Event of Default or
condition, omission or act which, with the passage of time, notice
or both, would constitute an Event of Default, has occurred,
Section 1.1(ll) is amended in its entirety and replaced with the
following new Section 1.1(ll):
“(ll) Final Maturity
Date . August
31, 2010 with respect to the Existing Inventory Loan and the New
Inventory Loan, and March 31, 2007 with respect to the Inventory
Term Loan.”
3.
Definitions . Provided that no Event of Default or
condition, omission or act which, with the passage of time, notice
or both, would constitute an Event of Default, has occurred,
Section 1.1(fff) is amended in its entirety and replaced with the
following new Section 1.1(fff):
“(fff) Loan to Retail Value
Ratio . The term “Loan to
Retail Value Ratio” shall mean the ratio of the outstanding
principal balance of the Loan, from time to time, to the Retail
Value of the Inventory. The Loan to Retail Value Ratio shall be:
(i) 15% for the Existing Inventory Loan; (ii) 11% for the Inventory
Term Loan; and (iii) 15% for the New Inventory
Loan.”
4.
Definitions . Provided that no Event of Default or
condition, omission or act which, with the passage of time, notice
or both, would constitute an Event of Default, has occurred,
Section 1.1(uuu) is amended in its entirety and replaced with the
following new Section 1.1(uuu):
“(uuuu) Term
. The term for the Existing
Inventory Loan and New Inventory Loan, shall be the period ending
August 31, 2010, and for the Inventory Term Loan shall be the
period ending March 31, 2007.”
5.
Definitions . Provided that no Event of Default or
condition, omission or act which, with the passage of time, notice
or both, would constitute an Event of Default, has occurred,
Section 1.1(cccc) is amended in its entirety and replaced with the
following new Section 1.1(cccc):
“(cccc) Required Retail
Value . The term
“Required Retail Value” shall mean the aggregate Retail
Value of the Inventory, such that the ratio of the outstanding
balance of the Loan, from time to time, to the aggregate Retail
Value of the Inventory does not exceed the Loan to Retail Value
Ratio. By way of example, if the outstanding principal balance of
the Existing Inventory Loan were $10,000,000, the outstanding
principal balance of the Inventory Term Loan were $4,000,000, and
the outstanding principal balance of the New Inventory Loan were
$6,000,000, the Required Retail Value of the Inventory would be
$143,030,303.03 (being the sum of $66,666,666.67 with respect to
the Existing Inventory Loan, $36,363,636.36 with respect to the
Inventory Term Loan, and $40,000,000.00 with respect to the New
Inventory Loan).”
6.
Revolving Loan and
Lending Limits .
Provided that no Event of Default or condition, omission or act
which, with the passage of time, notice or both, would constitute
an Event of Default, has occurred, Section 2.1 is amended in its
entirety and replaced with the following new Section
2.1:
“2.1 Revolving Loan and Lending
Limits . Upon
the terms and subject to the conditions set forth in this
Agreement, including but not limited to Section 2.8 hereof, the
Lender shall make Advances to the Borrower, of up to $16,000,000
million under the Existing Inventory Loan and the New Inventory
Loan and on the Closing Date up to $5,000,0000 under the Inventory
Term Loan. Borrower may borrow, repay and reborrow during the
Revolving Loan Period, as such term is hereafter defined, principal
under the Existing Inventory Loan and the New Inventory Loan in an
amount not to exceed at any time in the aggregate the lesser of:
(i) the Loan to Retail Value Ratio of the Required Retail Value of
the Inventory or (ii) $16,000,000.00 (such amount being the
aggregate principal amount of the Existing Inventory Loan and the
New Inventory Loan), as reduced as set forth in Section 2.4(b)(ii)
hereof. Under no conditions may the Borrower repay and reborrow
principal under the Inventory Term Loan. Borrower acknowledges and
agrees that Lender may make Advances from the Existing Inventory
Loan, the New Inventory Loan and/or the Inventory Term Loan in such
manner and amount as Lender may determine in its sole discretion.
The Revolving Loan Period shall be the period during the Term in
which the Borrower may borrow, repay and reborrow Advances and
shall terminate in all respects on August 31,
2008.”
7.
Section 2.4(d), Use of
Program Reserve Account Withdrawals and Surplus Under the TFC
Conduit Loan .
Section 2.4(d) is hereby deleted in its entirety.
8.
Loan
Term . Provided
that no Event of Default or condition, omission or act which, with
the passage of time, notice or both, would constitute an Event of
Default, has occurred, Section 2.7 is amended in its entirety and
replaced with the following new Section 2.7:
“2.7 Loan Term
. The term of the Loan shall
terminate on August 31, 2010, except for the Inventory Term Loan,
which shall terminate on March 31, 2007.”
9.
Section 3.7, Security
Interest in All Pledged Notes Receivable
. Section 3.7 is amended in its
entirety and replaced with the following new Section
3.7:
“3.7 Security Interest in All Pledged
Notes Receivable . Lender shall have a continuing security interest
in all of the Pledged Notes Receivable, and Lender may collect all
payments made under or in respect of all such Notes Receivable,
including, without limitation, Eligible Notes Receivable that are
or may become ineligible, until any of the same may be released by
Lender, if at all, pursuant to Section 12.1
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