Exhibit 10.5
SECOND AMENDMENT TO
CONSOLIDATED, AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
AND LOAN DOCUMENTS
THIS
SECOND AMENDMENT TO CONSOLIDATED, AMENDED AND RESTATED LOAN AND
SECURITY AGREEMENT AND LOAN DOCUMENTS, dated as of May 20,
2008 (the “Amendment”), by and between TEXTRON
FINANCIAL CORPORATION, a Delaware corporation (the
“Lender”), and SILVERLEAF RESORTS, INC. (formerly known
as SILVERLEAF VACATION CLUB, INC.), a Texas corporation (the
“Borrower”).
W
I T N E S S E T H:
WHEREAS,
Lender and Borrower are parties to that certain Consolidated,
Amended and Restated Loan and Security Agreement, dated as of
February 21, 2007, as amended by that certain Amendment to
Consolidated, Amended and Restated Loan and Security Agreement and
Loan Documents, dated as of October 31, 2007 (collectively,
the “Agreement”);
WHEREAS,
Lender has agreed with Borrower to purchase approximately
$40,000,000 of certain asset backed secured notes to be issued by
Silverleaf Finance VI, LLC, a bankruptcy-remote, special purpose
entity established by Borrower (“SFVI”); and
WHEREAS,
in connection with Lender’s purchase of such notes, Lender
and Borrower have agreed to make certain modifications to the
Agreement as set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
1. Defined Terms
. Except as expressly set forth herein, terms used but not defined
herein shall have the meaning ascribed to such terms in the
Agreement.
2. Acquisition Loan
Component . The term “Acquisition Loan
Component” is hereby amended in its entirety to read as
follows:
“
Acquisition Loan Component . The Acquisition Loan
Component shall be that portion of the Loan that may be used by
Borrower to fund the acquisition of the Real Property in an
aggregate amount not to exceed $10,000,000.00, subject to the terms
and provisions of this Agreement.”
3. Commitment .
The term “Commitment” is hereby amended in its entirety
to read as follows:
“
Commitment . The term “Commitment” shall
refer singly to the obligation of Lender to make a Loan or Loans to
Borrower and collectively to all Loans to be made by Lender to
Borrower as provided herein. The maximum aggregate Commitment of
Lender hereunder shall be $100,000,000.00, provided, however, that:
(i) the maximum Commitment of Lender
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with
respect to the Acquisition Loan Component shall be $10,000,000.00;
(ii) the maximum Commitment of the Lender with respect to the
Inventory Loan Component shall be $50,000,000.00; (iii) the
Maximum aggregate Commitment of Lender with respect to the
Acquisition Loan Component and the Inventory Loan Component shall
be $50,000,000.00; and (iv) the maximum aggregate Commitment
of Lender hereunder shall be reduced by the aggregate of:
(x) the outstanding principal balance from time to time of the
Notes purchased by Lender pursuant to the Note Purchase Documents
and (y) an amount equal to ten and one half percent (10.5%) of
the outstanding principal balance of the TFC Conduit Loan from time
to time. The available amount of the Commitment that Borrower may
borrow from time to time as an Advance hereunder shall be
determined by Lender on the date of each request by Borrower for an
Advance, but in no event less frequently than the last day of each
month during the Term hereof, based upon the then current aggregate
principal balance on each such determination date of the Loan, the
Notes and the TFC Conduit Loan.”
4. Interest Rate
. The term “Interest Rate” is hereby amended in its
entirety to read as follows:
“
Interest Rate . The Interest Rate on: (i) the
Receivable Note shall bear interest at a variable rate, adjusted as
of each Prime Rate Determination Date, equal to the Prime Rate,
determined as of each Prime Rate Determination Date, but in no
event shall the Interest Rate on the Receivable Note be less than
six percent (6.0%) per annum at any time; (ii) the Inventory
Note shall bear interest at a variable rate, adjusted as of each
Prime Rate Determination Date, equal to the Prime Rate, determined
as of each Prime Rate Determination Date, plus one percent (1.0%)
per annum, but in no event shall the Interest Rate on the Inventory
Note be less than six percent (6.0%) per annum at any time; and
(iii) the Acquisition Note shall bear interest at a variable
rate, adjusted as of such Prime Rate Determination Date, equal to
the Prime Rate, determined as of each Prime Rate Determination
Date, plus three percent (3.0%) per annum, but in no event shall
the Interest Rate on the Acquisition Note be less than eight
percent (8.0%) per annum at any time.”
5. TFC Conduit
Loan . The term “TFC Conduit Loan” is hereby
amended in its entirety to read as follows:
“ TFC Conduit
Loan . Shall mean that certain loan facility
provided by Textron Financial Corporation (TFC) to SPV in
accordance with the terms of the Silverleaf Finance II Documents,
as evidenced by: (i) the Subordinated Note dated as of
December 19, 2003 in the original principal amount of
$66,380,808.54 made by SPV to TFC and (ii) the Subordinated
Note dated as of March 28, 2005 in the original principal
amount of $26,333,737.55 made by SPV to TFC, regardless of whether
such notes are now or hereafter held by TFC.”
6. Section 1 is hereby
amended to add the following new definitions:
“
Notes . The term “Notes” shall mean the
asset backed secured notes that are purchased by Lender from SFVI
pursuant to the Note Purchase Documents.”
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“
Note Purchase Documents . The term “Note
Purchase Documents” shall mean the documents and agreement,
dated as of May 1, 2008, pursuant to which Lender has purchased or
will purchase from SFVI the Notes.”
7. Section 2.2(c) of the
Agreement is hereby amended in its entirety to read as
follows:
“(c)
Acquisition Loan Component . Upon the terms and
subject to the conditions set forth in this Agreement, including,
but not limited to, Section 2.7 hereof, the Lender shall, in
its sole and absolute discretion, make Advances with respect to the
Acquisition Loan Component to the Borrower, and the Borrower may,
subject to Lender’s approval, borrow, repay and reborrow from
the Acquisition Loan Component during the Revolving Loan Term in an
amount not to exceed at any time the lesser of (i)[A] with respect
to unimproved Real Property, 70% of the actual cost paid by
Borrower for said Real Property; or [B] with respect to the
improved Real Property, 75% of the actual cost paid by Borrower for
such Real Property or (ii) $10,000,000.00; provided, however, that
the fair market value of any such property, as determined by Lender
in its sole discretion based on an acceptable appraisal, shall in
each case equal or exceed such actual costs. Notwithstanding
anything in this Section 2.2(c) or Section 2.2(b) to the
contrary, the aggregate amount of a
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