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 WELLS 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 WELLS 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 Wells 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, Wells 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
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.”
(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,”
(b)
The chart in Section 2.4(c) regarding the
prepayment premium is hereby deleted and is hereby replaced with
the following:
|
Date of Prepayment
|
Premium
|
|
9/1/2009 to
8/31/2010
|
Three percent
(3%) of the then outstanding balance of the Loan
|
|
9/1/2010 to
8/31/2011
|
Two percent
(2%) of the then outstanding balance of the Loan
|
|
On or after
9/1/2011
|
One percent
(1%) of the then outstanding balance of the Loan”
|
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 M
