|
Ex. 10.1
THIRD
AMENDMENT TO
RECEIVABLES LOAN AND
SECURITY AGREEMENT
THIS
THIRD AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT
(this “ Amendment
”) is dated as of April 1, 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 1.57 . Section 1.57
of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
“1.57
Loan
. The maximum $20,000,000 credit facility as
described in this Agreement and evidenced and secured by the
Loan Documents.”
2.02 Amendment
to Section 1.63 . 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, 2008.”
2.03 Amendment
to Section 1.64 .
Section
1.64 of the Loan Agreement is hereby amended and restated in
its entirety to read as follows:
“1.64
Maximum Loan
Amount . The maximum principal balance of
the Loan which can be outstanding at any time is Twenty
Million Dollars ($20,000,000).”
2.04 Amendment
to Section 1.89 . The definition of
“Sovereign Facility” in Section 1.89
of the Loan Agreement is hereby deleted in its
entirety.
2.05 Amendment
to Section 1 .
Section
1 of the Loan Agreement is hereby amended to add the
definition of “Material Adverse Change” in correct
alphabetical order as set forth below.
“
Material Adverse
Change . Any development, event, condition,
obligation, liability or circumstance or set of events,
conditions, obligations, liabilities or circumstances or any
change(s) which: (i) has had, or reasonably could
be expected to have (as determined by Lender), a material
adverse effect upon or change in (a) the legality, validity or
enforceability of any Loan Document, or (b) the validity,
perfection or priority of any Lien granted to Lender under
this Agreement or any other Loan Document; (ii) has been, or
reasonably could be expected to be (as determined by Lender),
material and adverse to the value of any of the Collateral or
to the business, operations, prospects, properties, assets,
liabilities or condition (financial or otherwise) of the
Borrower (including, without limitation, the termination of
any applicable timeshare, condominium or similar regime
whether by consent of the Timeshare Interest owners or
otherwise, any modification or amendment to any Declaration
that shall, in the reasonable opinion of Lender, adversely
affect the Collateral, Timeshare Interest, any Receivables
Loan Approved Resort or the operations or prospects of any
Receivables Loan Approved Resort, or the substantial
destruction of any Receivables Loan Approved Resort, if not
fully insured); or (iii) has materially impaired, or
reasonably could be expected to materially impair (as
determined by Lender), the ability of the Borrower to perform
any of the Obligations, or to consummate the transactions,
under the Loan Documents.”
2.06 Amendment
to Section 4.1(h) . Section 4.1(h)
of the Loan Agreement is hereby deleted and replaced with
“Intentionally Omitted”.
2.07 Amendment
to Section 4.2(c)(iv) . Section
4.2(c)(iv) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
“(iv)
With respect to any Advance in connection with Pledged Notes
Receivable generated at Oak N’ Spruce Resort, delivered
to Lender an Assignment of Certificate of Beneficial Interest
securing such Pledged Note Receivable acceptable to Lender in
its sole discretion and evidence satisfactory to Lender that
Borrower has filed a UCC-1 financing statement in the state
where the Purchaser is located naming Borrower as the secured
party and Lender as Borrower’s assignee (and within
sixty (60) calendar days from the date of such Advance, a
recorded copy of such UCC-1 financing statement and
assignment).”
2.08 Amendment
to Section 5.12 . Section 5.12
of the Loan Agreement is hereby amended to delete therefrom the
phrase “(other than the agreements executed in connection
with the Sovereign Facility).”
2.09 Amendment
to Section 6.1(s) . Section 6.1(s)
of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
“(s)
Textron
Facility . Borrower will comply with each of
the terms and conditions of any subordinated indebtedness, the
Textron Facility and will promptly deliver to Lender, upon
receipt by Borrower, copies of any notices received by
Borrower in connection with the Textron Facility or any other
credit facility from time to time subject to the
Interecreditor Agreement.”
2.10 Amendment
to Section 6.1 . Section 6.1 of
the Loan Agreement is hereby amended to add the following
clause
(ee) to the end thereto as follows:
“(ee)
Title
Insurance . Borrower shall deliver or cause
to be delivered to Lender a mortgagee’s title insurance
commitment within sixty (60) days after the date of each
Advance covering Timeshare Interest Mortgages which are
included as part of such Advance (other than Timeshare
Interest Mortgages covering Timeshare Interests in Oak
N’ Spruce Resort), underwritten by a company acceptable
to Lender in all respects, to insure the lien of each
Timeshare Interest pledged to Lender in an amount not less
than the applicable Pledged Notes Receivable balance and
containing such affirmative coverage as Lender deems
reasonably necessary. A mortgagee title insurance
policy consistent with the subject title insurance commitment
and naming Borrower, its successors and assigns as insured
mortgagee shall be delivered with respect to the Timeshare
Interest Mortgages which make up each Advance (other than
Timeshare Interest Mortgages covering Timeshare Interests in
Oak N’ Spruce Resort) within sixty (60) days from the
issuance of the related title commitment in respect to a
Receivables Loan Approved Resort located within the State of
Texas and within ninety (90) days from the issuance of the
related title commitment in respect to a Receivables Loan
Approved Resort located in a state other than the State of
Texas and must insure that the applicable Timeshare Interest
Mortgage creates a first priority lien in and to the financed
Timeshare Interest in favor or Lender, as assignee of
Borrower, with such exceptions and conditions to title as
Lender shall approve in writing. Notwithstanding
the foregoing, Agent reserves the right in its sole discretion
to require at any time as a condition to any Advance that
Borrower deliver or cause to be delivered to Lender a
mortgagee’s title insurance commitment at the time of
such Advance covering Timeshare Interest Mortgages which are
included as part of such Advance (other than Timeshare
Interest Mortgages covering Timeshare Interests in Oak
N’ Spruce Resort), underwritten by a company acceptable
to Lender in all respects, to insure the lien of each
Timeshare Interest pledged to Lender in an amount not less
than the applicable Pledged Notes Receivable balance and
containing such affirmative coverage as Lender deems
reasonably necessary. If Agent requires such
delivery as a condition to an Advance, a mortgagee title
insurance policy consistent with the subject title insurance
commitment and naming Borrower, its successors and assigns as
insured mortgagee shall be delivered with respect to the
Timeshare Interest Mortgages which make up each Advance (other
than Timeshare Interest Mortgages covering Timeshare Interests
in Oak N’ Spruce Resort) within sixty (60) days of the
date of the Advance on such Pledged Notes Receivable and must
insure that the applicable Timeshare Interest Mortgage creates
a first priority lien in and to the financed Timeshare
Interest in favor or Lender, as assignee of Borrower, with
such exceptions and conditions to title as Lender shall
approve in writing ”
2.11 Amendment
to Section 6.2(m) . Section 6.2(m)
of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
“(m)
Maximum Sales
Costs . As of the last day of each calendar
quarter, commencing with the calendar quarter ending June 30,
2005, Borrower will not permit the four quarter cumulative
ratio of Marketing and Sales Costs to the Borrower’s net
proceeds from the sale of Timeshare Interests as recorded on
the Borrower’s financial statements for the immediately
preceding four (4) consecutive fiscal quarters of the Borrower
to equal or exceed a ratio of .600 to
1. Notwithstanding the foregoing, in the event that
Borrower delivers written evidence satisfactory to Lender that
the above-referenced ratio is no longer required to be tested
under the Textron Facility, such ratio shall not be tested
under this Agreement.”
2.12 Amendment
to Section 7.13 . Section 7.13
of the Loan Agreement is hereby amended and restated in its
entirety to read as follows:
“7.13
Material Adverse
Change . If
| 
