Exhibit 10.4
FIRST AMENDMENT TO AMENDED AND RESTATED
LOAN, SECURITY AND AGENCY AGREEMENT (TRANCHE A)
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN, SECURITY AND AGENCY
AGREEMENT (TRANCHE A) dated as of December 19, 2003 (the "First Amendment"), is
entered into by and among SILVERLEAF RESORTS, INC., a Texas corporation (the
"BORROWER"), the parties, including TEXTRON FINANCIAL CORPORATION ("TFC"), a
Delaware corporation, which execute and deliver this Agreement in their
respective capacities as lenders hereunder (collectively, the "LENDERS" and
each, individually, a "LENDER"), and TEXTRON FINANCIAL CORPORATION as facility
agent and collateral agent (the "AGENT").
W I T N E S S E T H:
WHEREAS, Borrower was formerly known as ASCENSION CAPITAL CORPORATION
(the "Guarantor"), the successor to ASCENSION RESORTS, LTD., a Texas limited
partnership (the "Original Borrower"), by merger of EQUAL INVESTMENT COMPANY, a
Texas corporation, ASCENSION RESORTS, LTD. and ASCENSION CAPITAL CORPORATION;
WHEREAS, TFC, Original Borrower and Guarantor were parties to that
certain Loan and Security Agreement dated as of August 15, 1995 (the "Original
Agreement"), pursuant to which the Original Borrower executed its Secured
Promissory Note in favor of Lender in the amount of $5,000,000.00, as amended to
date (the "Original Note");
WHEREAS, on December 28, 1995 Ascension Resorts, Ltd. was merged into
the Guarantor and Guarantor was thereafter renamed Silverleaf Vacation Club,
Inc.;
WHEREAS, on December 28, 1995, TFC, Borrower and Guarantor amended the
Original Agreement pursuant to a First Amendment to Loan and Security Agreement
dated as of December 28, 1995 (the "First Amendment to Original Agreement") to,
among other things, evidence TFC's approval of the merger of Ascension Resorts,
Ltd. into Ascension Capital Corporation and to reflect the above-mentioned
merger and name change;
WHEREAS, on October 31, 1996, TFC and Borrower further amended the
Original Agreement pursuant to a Second Amendment to Loan and Security Agreement
dated as of October 31, 1996 (the "Second Amendment") to, among other things,
increase the amount of the Loan, decrease the interest rate, and extend the
maturity date of the Loan;
WHEREAS, pursuant to a commitment letter dated January 26, 1999, TFC
and Borrower agreed to further modify the terms of the Original Agreement to,
among other things, increase the amount of the Loan, decrease the interest rate,
extend the maturity date of the Loan and to reflect the change in Borrower's
name to Silverleaf Resorts, Inc.;
WHEREAS, TFC and Borrower further amended the Original Agreement
pursuant to a Third Amendment to Loan and Security Agreement dated as of March
31, 1999 (the "Third Amendment") to amend the Agreement as provided in the
January 26, 1999 commitment letter;
WHEREAS, TFC and Borrower further amended the Original Agreement
pursuant to a Fourth Amendment to Loan and Security Agreement dated as of
December 16, 1999 (the "Fourth Amendment") to, among other things, modify the
definitions of Borrowing Base and Eligible Notes Receivable;
WHEREAS, TFC and Borrower, as a result of certain Events of Default
under the Original Agreement, entered into that certain Forbearance Agreement
dated as of April 6, 2001 (the "Forbearance Agreement");
WHEREAS, TFC and Borrower further amended the Original Agreement
pursuant to a Fifth Amendment to Loan and Security Agreement dated as of April
17, 2001 (the "Fifth Amendment") to, among other things, extend the Revolving
Credit Period and to incorporate the terms of the Forbearance Agreement;
WHEREAS, TFC and Borrower further amended and restated the Original
Agreement in its entirety pursuant to an Amended and Restated Loan, Security and
Agency Agreement (Tranche A) (as amended hereby, the "Loan Agreement") to, among
other things, restructure and modify the Loan, including separating the Loan
into two separate components - the Revolving Loan Component in the original
amount of up to $56,894,400.00 and the Term Loan Component in the original
amount of up to $15,105,600.00; to reduce the Commitment, as defined in the Loan
Agreement, to $63,920,000.00 less the outstanding principal balance of the Term
Loan Component from time to time and to reduce the aggregate Commitment
hereunder, under the Additional Credit Facility and the Tranche C Facility, as
such terms are defined in the Loan Agreement, to $136,000,000.00 less the
outstanding principal balance of the Term Loan Component and the aggregate term
loan component of the Additional Credit Facility and the Tranche C Facility from
time to time; and to replace the Amended Note with: (i) an Amended and Restated
Secured Promissory Note or Notes in the aggregate original principal amount of
$56,894,400.00 in favor of Agent, as agent for each of the Lenders (singly and
collectively the "Revolving Loan Component Note") and (ii) a Secured Promissory
Note or Notes in the aggregate original principal amount of $15,105,600.00 in
favor of Agent, as agent for each of the Lenders (singly and collectively the
"Term Loan Component Note", and together with the Revolving Loan Component Note,
sometimes referred to herein singly and collectively as the "Amended Note");
WHEREAS, TFC and Borrower amended the Loan Agreement pursuant to a
Letter Amendment dated March 27, 2003 to reinstate the maximum allowable ratio
of Marketing and Sales Expenses to the Borrower's net proceeds from the sale of
Intervals to a ratio of .550 to 1;
WHEREAS, TFC and Borrower amended the Loan Agreement pursuant to a
Letter Agreement dated September 25, 2003 to exclude the $28,711,000 increase in
Borrower's allowance for doubtful accounts during the quarter ended March 31,
2003 from the calculations of EBITDA, the Interest Coverage Ratio and
Consolidated Net Income under the Loan Agreement and to approve the retirement
of certain subordinated notes with a face value of $7,620,000;
2
WHEREAS, Borrower entered into: (i) a Letter Agreement with TFC dated
November 17, 2003 (the "November Letter Agreement"); (ii) an amendment to the
▇▇▇▇▇▇ Documents dated November 21, 2003; and (iii) an amendment to the
Sovereign Documents dated October 1, 2003; each for the purpose of, among other
things, waiving certain Events of Default that may have arisen under the Loan
Agreement, the ▇▇▇▇▇▇ Documents and the Sovereign Documents described therein,
respectively;
WHEREAS, TFC and Borrower have agreed to enter into this First
Amendment to the Amended and Restated Loan, Security and Agency Agreement to
amend and modify the Loan Agreement as set forth below;
WHEREAS, Borrower intends to convey and transfer certain assets to the
SPV, including the SPV Assets, in accordance with the terms of the Silverleaf
Finance II Documents, as such terms are hereafter defined and whereas in
connection with such transfer, the Commitment, as such term is hereafter
defined, shall be reduced as described herein;
WHEREAS, in connection with the Loans to be made by Lenders pursuant to
the Loan Agreement, Textron Financial Corporation has agreed to act as facility
agent and collateral agent for the other Lenders and to perform such duties with
respect to the Loans as are expressly set forth herein; and
WHEREAS, all capitalized terms not otherwise defined herein shall have
the meaning ascribed to such term in 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. ADDITIONAL RESORT COLLATERAL. Section 1.1(c) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(c) ADDITIONAL RESORT COLLATERAL. The term "Additional Resort
Collateral" shall mean singly and collectively, the
development rights, real property, fixtures and other personal
property, including all management agreements for the Resorts,
now owned or hereafter acquired by Borrower and described on
Schedule 1.1(c) attached hereto. "Additional Resort
Collateral" shall not include the promissory notes and other
property of Silverleaf Finance I, Inc., that constitute
"Pledged Assets" under the DZ Documents OR THE PROMISSORY
NOTES AND OTHER PROPERTY OF SILVERLEAF FINANCE II, INC. THAT
CONSTITUTE "CONVEYED ASSETS" OR COLLATERAL UNDER THE
SILVERLEAF FINANCE II DOCUMENTS."
2. BUSINESS PLAN. Section 1.1(m) is hereby deleted in its entirety and in
its place instead is substituted the following:
"(m) BUSINESS PLAN. The term "Business Plan" shall mean the
five (5) year "Stand Alone" business plan, more particularly
described as document "BS.IS.02-08.Lender.9-03.NS.1a2",
prepared by Borrower and attached TO THE FIRST AMENDMENT as
Exhibit F-1. THE BUSINESS PLAN INCLUDES THE "IMPACT ON LENDERS
WORKSHEET" SETTING FORTH
3
THE AMOUNTS TO BE ADVANCED BY TEXTRON (INDIVIDUALLY AND AS
AGENT FOR THE LENDERS), ▇▇▇▇▇▇ AND SOVEREIGN PURSUANT TO THEIR
RESPECTIVE CREDIT FACILITIES (THE "SENIOR LENDER ADVANCE
SCHEDULE")."
3. COLLATERAL. Section 1.1(p) is hereby amended in part to add the
following new paragraphs:
"(xiv) THE SILVERLEAF FINANCE II STOCK."
"(iv) THE SILVERLEAF FINANCE II SUBORDINATED NOTE."
4. COMMITMENT. Section 1.1(q) is hereby deleted in its entirety and in its
place instead is substituted the following:
"(q) COMMITMENT. The term "Commitment" shall refer singly to
the obligation of each Lender to make a Loan or Loans under
the Revolving Loan Component to Borrower in an aggregate
amount not to exceed the Pro Rata Percentage for each Lender
of each Advance and to the obligation of TFC to make a Loan or
Loans under the Term Loan Component to Borrower and
collectively to all Loans to be made by all Lenders under the
Revolving Loan Component and by TFC under the Term Loan
Component as provided herein. AFTER GIVING EFFECT TO THE
DECEMBER 2003 LOAN PAYDOWN PROVIDED FOR IN SECTION 2.4(a)
BELOW, the maximum aggregate Commitment of the Lenders
hereunder shall not exceed (i) $44,650,000.00 for the
Revolving Loan Component; and (ii) $11,280,000.00 for the Term
Loan Component, for a total Commitment under this Agreement of
$55,930,000.00. The Commitment and the Maximum Available
Amount shall be subject to reduction as provided in Section
2.1(a). AFTER GIVING EFFECT TO THE DECEMBER 2003 LOAN PAYDOWN
PROVIDED FOR IN SECTION 2.4(a) BELOW, the maximum aggregate
Commitment under this Agreement, the Additional Credit
Facility and the Tranche C Facility shall be $95,000,000.00
for the Revolving Loan Component and $24,000,000.00 for the
Term Loan Component, which Commitment shall be reduced as
provided in Section 2.1(a)."
5. DZ FACILITY. Section 1.1(w) is hereby deleted in its entirety and in
its place instead is substituted the following:
"(a) DZ FACILITY. The term "DZ Facility" shall mean that
certain note purchase facility to be provided by DZ Bank AG
Deutsche Zentral-Genossenschaftsbank, as agent for Autobahn
Funding Company, LLC ("DZ") to Borrower, on the terms outlined
in the DZ Letter Agreement, dated December 12, 2001, as
supplemented by that certain letter agreement by and between
Borrower and DZ dated February 7, 2002, and attached hereto as
Exhibit G, AS MAY BE HEREAFTER AMENDED FROM TIME TO TIME
(collectively, the "DZ LETTER AGREEMENT") and evidenced by the
documents listed on Schedule 1.1(w) hereto (the "DZ
DOCUMENTS")."
6. EFFECTIVE ADVANCE RATE. Section 1.1(z) is hereby deleted in its
entirety and in its place instead is substituted the following:
4
"(z) EFFECTIVE ADVANCE RATE. The term "Effective Advance Rate"
shall mean the aggregate outstanding principal balance of the
Revolving Loan Component and the Term Loan Component divided
by the aggregate outstanding principal balance of all Eligible
Notes Receivable pledged to Agent hereunder. The Effective
Advance Rate shall at no time exceed the "MAXIMUM EFFECTIVE
ADVANCE RATE", DETERMINED AS FOLLOWS: (i) 95%; or (ii) SUCH
HIGHER RATE AS MAY BE AGREED TO BY TFC IN WRITING IN ITS SOLE
AND ABSOLUTE DISCRETION PROVIDED, HOWEVER, THAT THE AGGREGATE
OUTSTANDING PRINCIPAL BALANCE OF THE REVOLVING LOAN COMPONENT
DIVIDED BY THE AGGREGATE OUTSTANDING PRINCIPAL BALANCE OF ALL
ELIGIBLE NOTES RECEIVABLE PLEDGED TO AGENT HEREUNDER WILL NOT
EXCEED 75%. In addition, the Effective Advance Rate determined
with respect to the aggregate of the Loan, the Additional
Credit Facility and the Tranche C Facility (collectively
"TFC's Facilities") shall at no time exceed: (i) 95% of the
aggregate outstanding principal balance of all Eligible Notes
Receivable pledged to TFC, as agent or lender as applicable,
under TFC's Facilities; or (ii) SUCH HIGHER RATE AS MAY BE
AGREED TO BY TFC IN WRITING IN ITS SOLE AND ABSOLUTE
DISCRETION PROVIDED, HOWEVER, THAT THE AGGREGATE OUTSTANDING
PRINCIPAL BALANCE OF THE REVOLVING LOAN COMPONENTS OF TFC'S
FACILITIES DIVIDED BY THE AGGREGATE OUTSTANDING PRINCIPAL
BALANCE OF ALL ELIGIBLE NOTES RECEIVABLE PLEDGED TO AGENT
UNDER TFC'S FACILITIES WILL NOT EXCEED 75%."
7. ELIGIBLE NOTES RECEIVABLE. Section 1.1(bb)(xv) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(xv) the maximum remaining principal balance of any such Note
Receivable shall not exceed $30,000 and the total maximum
remaining principal balance of the Notes Receivable executed
by any one Purchaser or other maker shall not exceed $50,000
in the aggregate (or such greater amount as may be approved in
writing in advance by Agent);"
8. FACILITY FEE. Section 1.1(ii) is hereby deleted in its entirety and in
its place instead is substituted the following:
"(ii) FACILITY FEE. The term "Facility Fee" shall mean the
facility fee set forth in the Fee Letter, which shall be
payable in accordance with Section 2.7. IN ADDITION TO THE
FEES SET FORTH IN THE FEE LETTER, THE FACILITY FEE SHALL
INCLUDE A FEE IN THE AMOUNT OF ONE-HALF OF ONE PERCENT (1/2%)
OF THE TOTAL AMOUNT OF THE MAXIMUM AGGREGATE COMMITMENT FOR
BOTH THE REVOLVING LOAN COMPONENT AND THE TERM LOAN COMPONENT
UNDER THIS AGREEMENT, THE ADDITIONAL CREDIT FACILITY, THE
TRANCHE C FACILITY AND THE INVENTORY LOAN."
9. NET SECURITIZATION CASH FLOW. Section 1.1(iii) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(iii) NET SECURITIZATION CASH FLOW. All right, title and
interest of: (i) Silverleaf Finance I, Inc., a wholly owned
subsidiary of Borrower, in any excess cash flow derived from
the Notes Receivable sold by Silverleaf Finance I, Inc. to DZ
pursuant
5
to the DZ Documents; and (ii) Silverleaf Finance II, Inc., a
wholly owned subsidiary of Borrower, in any excess cash flow
derived from the Notes Receivable sold by Borrower to
Silverleaf Finance II, Inc. and then sold by Silverleaf
Finance II, Inc. to Textron Financial Corporation, as Group
Two Lender under the Silverleaf Finance II Documents."
10. REVOLVING LOAN COMPONENT. Section 1.1(zzz) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(zzz) REVOLVING LOAN COMPONENT. Shall mean that portion of
the Loan in the amount of $44,650,000.00, AS OF THE FIRST
AMENDMENT EFFECTIVE DATE, on the terms and conditions
described in Sections 2.1, 2.3, 2.4 and 2.5 hereof, which
amount shall be repaid as provided in Section 2.4 and Section
2.5(b) hereof."
11. REVOLVING LOAN TERM. Section 1.1(bbbb) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(bbbb) REVOLVING LOAN TERM. Shall mean the period commencing
on the Effective Date and ending on March 31, 2006."
12. TERM LOAN COMPONENT. Section 1.1(rrrr) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(rrrr) TERM LOAN COMPONENT. Shall mean that portion of the
Loan in the amount of $11,280,000.00, AS OF THE FIRST
AMENDMENT EFFECTIVE DATE, on the terms and conditions set
forth in Sections 2.2, 2.3, 2.4 and 2.5 hereof, which amount
shall be repaid as provided in Section 2.4 and Section 2.5(b)
hereof."
13. DEFINITIONS. Section 1.1 is hereby amended in part to add the following
new paragraphs:
"(hhhhh) DECEMBER 2003 LOAN PAYDOWN. SHALL MEAN THE PAYMENT ON
THE TERM LOAN COMPONENT AND THE REVOLVING LOAN COMPONENT FROM
THE PROCEEDS OF THE TFC CONDUIT LOAN IN ACCORDANCE WITH
SECTION 2.4(a)(i)."
"(iiiii) FIRST AMENDMENT. SHALL MEAN THAT CERTAIN FIRST
AMENDMENT TO AMENDED AND RESTATED LOAN, SECURITY AND AGENCY
AGREEMENT (TRANCHE A) DATED AS OF DECEMBER 19, 2003 BY AND
AMONG SILVERLEAF RESORTS, INC., A TEXAS CORPORATION, AS
BORROWER, THE PARTIES, INCLUDING TEXTRON FINANCIAL
CORPORATION, A DELAWARE CORPORATION, AS LENDERS, AND TEXTRON
FINANCIAL CORPORATION AS FACILITY AGENT AND COLLATERAL AGENT."
"(jjjjj) FIRST AMENDMENT EFFECTIVE DATE. SHALL MEAN THE DATE
ON WHICH: (i) THE CLOSING OF THE TFC CONDUIT LOAN OCCURS; AND
(ii) AGENT DETERMINES, IN ITS SOLE AND ABSOLUTE DISCRETION,
THAT EACH OF THE CONDITIONS SET FORTH IN SECTION 41 OF THE
FIRST AMENDMENT HAVE BEEN SATISFIED."
6
"(kkkkk) SILVERLEAF FINANCE II DOCUMENTS. SHALL MEAN THE SPV
LOAN AGREEMENT, THE DEVELOPER TRANSFER AGREEMENT, THE DEMAND
NOTES AND ALL OTHER AGREEMENTS OR DOCUMENTS EXECUTED IN
CONNECTION WITH THE TFC CONDUIT LOAN, AS EACH MAY BE AMENDED,
RESTATED OR OTHERWISE MODIFIED FROM TIME TO TIME."
"(lllll) SILVERLEAF FINANCE II STOCK. SHALL MEAN ALL EQUITY
INTERESTS IN SILVERLEAF FINANCE II, INC., ALL DOCUMENTS,
CERTIFICATES OR INSTRUMENTS REPRESENTING ANY OF THE FOREGOING
AND ALL CASH, SECURITIES, DIVIDENDS, RIGHTS AND OTHER PROPERTY
AT ANY TIME RECEIVED OR RECEIVABLE IN RESPECT OF OR IN
EXCHANGE FOR THE FOREGOING, AND ALL PROCEEDS OF THE
FOREGOING."
"(mmmmm) SILVERLEAF FINANCE II SUBORDINATED NOTE. SHALL MEAN
THE SUBORDINATED NOTE, DATED AS OF DECEMBER 19, 2003, PAYABLE
BY SPVTO THE ORDER OF SILVERLEAF RESORTS, INC., AND ANY OTHER
PROMISSORY NOTE ISSUED IN REPLACEMENT OR RESTATEMENT THEREOF,
OR OTHERWISE ISSUED TO EVIDENCE SPV'S OBLIGATION TO PAY THE
DEFERRED PURCHASE PRICE OF RECEIVABLES UNDER THE DEVELOPER
TRANSFER AGREEMENT WHICH IS PART OF THE SILVERLEAF FINANCE II
DOCUMENTS, IN EACH CASE AS AMENDED OR OTHERWISE MODIFIED FROM
TIME TO TIME, AND ALL PROCEEDS OF THE FOREGOING."
"(nnnnn) SILVERLEAF FINANCE II STOCK AND SUBORDINATED NOTE
PLEDGE AGREEMENT. SHALL MEAN THE AGREEMENT IN THE FORM
ATTACHED TO THE FIRST AMENDMENT AS EXHIBIT B-1, PURSUANT TO
WHICH THE SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF
FINANCE II SUBORDINATED NOTE IS PLEDGED TO AGENT, AS AGENT FOR
EACH LENDER, AS SECURITY FOR THE LOAN."
"(ooooo) SPV. SHALL MEAN SILVERLEAF FINANCE II, INC., A
DELAWARE CORPORATION."
"(ppppp) SPV ASSETS. SHALL MEAN ALL ASSETS SOLD OR CONVEYED BY
BORROWER TO THE SPV PURSUANT TO THE SILVERLEAF FINANCE II
DOCUMENTS."
"(qqqqq) SPV SUBORDINATION AGREEMENT. SHALL MEAN THAT CERTAIN
SUBORDINATION AGREEMENT RELATING TO TFC'S INTEREST IN THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF FINANCE II
SUBORDINATED NOTE, DATED AS OF DECEMBER 19, 2003 BY AND AMONG
TEXTRON FINANCIAL CORPORATION, IN ITS CAPACITY AS LENDER AND
AGENT FOR THE LENDERS UNDER THE LOAN DOCUMENTS AND TEXTRON
FINANCIAL CORPORATION, IN ITS CAPACITY AS LENDER UNDER THE
GROUP TWO DOCUMENTS (AS SUCH TERM IS DEFINED IN THE SPV
SUBORDINATION AGREEMENT), AS MAY BE AMENDED, RESTATED OR
MODIFIED FROM TIME TO TIME."
"(rrrrr) TFC CONDUIT LOAN. SHALL MEAN THAT CERTAIN LOAN
FACILITY TO BE PROVIDED BY TEXTRON FINANCIAL CORPORATION
("TFC") TO SPV IN ACCORDANCE WITH THE TERMS OF THE SILVERLEAF
FINANCE II DOCUMENTS."
14. REVOLVING LOAN COMPONENT. Section 2.1(a) is hereby deleted in its
entirety and in its place instead is substituted the following:
7
"(a) REVOLVING LOAN COMPONENT. Upon the terms and subject to
the conditions set forth in this Agreement, each Lender agrees
severally, at any time and from time to time during the
Revolving Loan Term, to make a loan or loans to Borrower, and
Borrower may borrow, repay and reborrow during the Revolving
Loan Term, with respect to the Revolving Loan Component only,
in an aggregate amount not to exceed at any time the lesser
of: (i) each Lender's Pro Rata Percentage of the amount of the
Borrowing Base or (ii) the lending limits set forth in section
2.1(b) hereof. Notwithstanding anything herein to the
contrary, as of the First Amendment Effective Date, the
aggregate balance of all Advances shall not exceed
$44,650,000.00 (the "Maximum Available Amount"). Borrower's
right to receive Advances hereunder shall also be subject to
the terms and conditions set forth in that certain
Intercreditor Agreement between Lender, Borrower, ▇▇▇▇▇▇ and
Sovereign dated of even date herewith. Borrower acknowledges,
confirms and agrees that TFC shall have the right to allocate
any request for an Advance hereunder to this Loan, the
Additional Credit Facility and/or the Tranche C Facility in
such manner as TFC may elect in its sole and absolute
discretion. Notwithstanding anything herein to the contrary,
Borrower acknowledges, confirms and agrees that it shall not
be entitled to receive, nor shall any Lender be required to
make, any Advance if and to the extent that: (i) Borrower has
failed to substantially adhere to the Business Plan, including
the Senior Lender Advance Schedule, as determined by Agent in
its sole and absolute discretion; or (ii) the most recent
weekly flash report delivered in accordance with Section
7.1(h)(xii) hereof (a "Weekly Flash Report"), indicates that
Borrower has in excess of five million dollars ($5,000,000) in
available unrestricted cash.
Borrower acknowledges, agrees and confirms that as
provided in the Business Plan, the Commitment for the
Revolving Loan Component and the Maximum Available Amount
shall be reduced to $39,950,000.00 ON MARCH 31, 2006.
On or before the FIRST AMENDMENT EFFECTIVE DATE, the
aggregate amount of the Commitment for the Revolving Loan
Component provided hereunder, under the Additional Credit
Facility and the Tranche C Facility shall be equal to
$95,000,000.00. Borrower further acknowledges, confirms and
agrees that the aggregate Commitment for the Revolving Loan
Component under this Agreement, the Additional Credit Facility
and the Tranche C Facility shall be reduced to $85,000,000.00
ON MARCH 31, 2006."
15. INTEREST RATE. Section 2.3 is hereby deleted in its entirety and in its
place instead is substituted the following:
"2.3 INTEREST RATE. From and after the Effective Date, with
respect to the Revolving Loan Component, including each Loan
hereafter made pursuant to Section 2.1(a) hereof, the
Revolving Loan Component shall bear interest at the Interest
Rate applicable to the Revolving Loan Component as of the date
funds are received by Agent as provided in Section 2.1(f)
through each Lender's receipt of repayment of the Revolving
Loan Component in accordance with Section 2.4 (if received by
a Lender later than 1:00 p.m., Eastern Standard Time, then
interest accrual shall be through the
8
next Business Day following such receipt). From and after the
Effective Date, the Term Loan Component shall bear interest at
the Interest Rate applicable to the Term Loan Component
through TFC'S receipt of payment of the Term Loan Component as
provided in Section 2.4. Immediately upon the occurrence of an
Event of Default and after the Final Maturity Date (if the
Loan is not paid in full on the Final Maturity Date), at TFC's
election, in its sole discretion, the entire Loan will bear
interest at the Default Rate."
16. PAYMENTS. The first paragraph of Section 2.4 is hereby deleted in its
entirety and in its place instead is substituted the following paragraph:
"2.4 PAYMENTS. From and after the Effective Date, Borrower
agrees punctually to pay or cause to be paid to Agent, as
agent for each Lender UNDER THE REVOLVING LOAN COMPONENT AND
TO TFC AS LENDER UNDER THE TERM LOAN COMPONENT, all principal
and interest due under each Note in respect of the Loans.
Borrower shall make the following payments on the Loan:"
17. LOAN PAYDOWN. Section 2.4(a) is hereby deleted in its entirety and in
its place instead is substituted the following:
"(a)(i) INITIAL LOAN PAYDOWN. On or before May 31, 2002,
Borrower shall make, from the proceeds of the DZ Facility, a
payment on the Revolving Loan Component in the amount of
approximately $12,274,000. (ii) DECEMBER 2003 LOAN PAYDOWN. ON
OR BEFORE THE FIRST AMENDMENT EFFECTIVE DATE, BORROWER SHALL
MAKE, FROM THE PROCEEDS OF THE TFC CONDUIT LOAN, A PAYMENT ON
THE REVOLVING LOAN COMPONENT IN THE AMOUNT OF APPROXIMATELY
$21,857,538.07. ON OR BEFORE THE FIRST AMENDMENT EFFECTIVE
DATE, BORROWER SHALL MAKE, FROM THE PROCEEDS OF THE TFC
CONDUIT LOAN, A PAYMENT ON THE TERM LOAN COMPONENT IN THE
AMOUNT OF APPROXIMATELY $2,647,357.58."
18. MONTHLY PAYMENTS, TERM LOAN COMPONENT. That portion of Section 2.4(b)
beginning "(2) Term Loan Component..." and ending "...as provided immediately
above.", describing monthly payments under the Term Loan Component, is hereby
deleted in its entirety and in its place instead is substituted the following:
"(2) TERM LOAN COMPONENT. Borrower shall pay to TFC on or
before the tenth day of each month an amount equal to: (i) all
interest accrued at the applicable Default Rate on the Term
Loan Component; plus (ii) all interest due and payable as of
the last day of the immediately preceding month; plus (iii) a
principal payment sufficient to amortize the Term Loan
Component in full on the basis of a FIFTEEN (15) year
amortization schedule. In the event that Borrower fails to
make the payment in question, TFC may, at its option, on or
before the tenth day of each month, make an Advance with
respect to the Revolving Loan Component and apply such Advance
to the payment of amounts due in respect of the Term Loan
Component as provided immediately above, PROVIDED THAT: (i) NO
DEFAULT OR EVENT OF DEFAULT SHALL EXIST IMMEDIATELY PRIOR TO
THE MAKING OF SUCH REQUESTED ADVANCE OR, AFTER GIVING EFFECT
9
THERETO, IMMEDIATELY AFTER THE MAKING OF SUCH REQUESTED
ADVANCE, EXCEPT FOR ANY DEFAULT OR EVENT OF DEFAULT THAT MAY
HAVE ARISEN AS A RESULT OF NON-PAYMENT OF THE TERM LOAN
COMPONENT; AND (II) AGENT SHALL HAVE DETERMINED THAT THE
REQUESTED ADVANCE, WHEN ADDED TO THE AGGREGATE OUTSTANDING
PRINCIPAL AMOUNT OF ALL PREVIOUS ADVANCES, IF ANY, DOES NOT,
BASED ON THE ELIGIBLE NOTES RECEIVABLE THAT HAVE BEEN DULY
PLEDGED IN FAVOR OF AGENT: (X) EXCEED THE TOTAL AMOUNT OF THE
BORROWING BASE, OR (Y) CAUSE THE EFFECTIVE ADVANCE RATE,
DETERMINED WITH RESPECT TO THE AGGREGATE OF THE LOAN, THE
ADDITIONAL CREDIT FACILITY AND THE TRANCHE C FACILITY, TO
EXCEED THE MAXIMUM EFFECTIVE ADVANCE RATE."
19. MANDATORY TERM LOAN COMPONENT FUND UP PREPAYMENT. Section 2.4(c),
Mandatory Term Loan Component Fund Up Prepayment, is hereby deleted in its
entirety and in its place instead is substituted the following:
"(c) MANDATORY TERM LOAN COMPONENT FUND UP PREPAYMENT. If and
to the extent that: (i) at the end of each calendar quarter
during the first two (2) years of the Term following the
Effective Date, commencing the calendar quarter ending June
30, 2002 (x) the outstanding principal balance of all Loans
made with respect to the Revolving Loan Component is less than
seventy percent (70%) of the then outstanding principal
balance of the Eligible Notes Receivable pledged to Agent with
respect to such Loans (such difference being hereinafter
referred to as an "Available Fund-Up Amount") and (y) provided
Borrower has available unrestricted cash of five million
dollars ($5,000,000.00) or more as indicated in the most
recent Weekly Flash Report or (ii) at the end of each calendar
quarter commencing the calendar quarter ending June 30, 2004
(x) the outstanding principal balance of all Loans made with
respect to the Revolving Loan Component is less than
seventy-five percent (75%) of the then outstanding principal
balance of the Eligible Notes Receivable pledged to Agent with
respect to such Loans (such difference also being referred to
as an "Available Fund-Up Amount") and (y) provided Borrower
has available unrestricted cash of five million dollars
($5,000,000.00) or more as indicated in the most recent Weekly
Flash Report, then Borrower agrees that Agent may, IN ITS SOLE
AND ABSOLUTE DISCRETION, on the last Business Day of each such
calendar quarter, make an Advance with respect to the
Revolving Loan Component in an amount NOT TO EXCEED such
Available Fund Up Amount and apply any such Advance to the
repayment of the Term Loan Component as follows: (i) first to
interest at the applicable Default Rate; (ii) then to interest
at the applicable Interest Rate and (iii) then to reduction of
principal of the Term Loan Component until such time as the
Term Loan Component is paid in full."
20. USE OF PROGRAM RESERVE ACCOUNT WITHDRAWALS AND SURPLUS UNDER THE TFC
CONDUIT LOAN. Section 2.4 is hereby amended in part to add the following new
paragraph:
"(h) USE OF PROGRAM RESERVE ACCOUNT WITHDRAWALS AND SURPLUS
UNDER THE TFC CONDUIT LOAN. TO THE EXTENT THAT FUNDS ARE MADE
AVAILABLE TO SPV FROM THE PROGRAM RESERVE ACCOUNT IN
ACCORDANCE WITH SECTION 5.1(E) OF THE LOAN AND SECURITY
AGREEMENT WHICH IS PART OF THE SILVERLEAF FINANCE II
DOCUMENTS, TO THE EXTENT PERMITTED BY LAWS AND THE SILVERLEAF
FINANCE II DOCUMENTS, BORROWER SHALL
10
CAUSE SPV TO DISTRIBUTE SUCH FUNDS TO BORROWER AND BORROWER
SHALL MAKE PAYMENT IN THE AMOUNT OF SUCH DISTRIBUTION TO TFC
AND SOVEREIGN TO BE APPLIED IN THE ORDER SET FORTH IN THAT
CERTAIN INTERCREDITOR AGREEMENT BETWEEN TFC, BORROWER, ▇▇▇▇▇▇
AND SOVEREIGN DATED OF EVEN DATE HEREWITH, AS AMENDED. TO THE
EXTENT THAT BORROWER RECEIVES ANY DISTRIBUTIONS FROM THE SPV
IN RESPECT OF ANY SURPLUS PAYMENTS, AS SUCH TERM IS DEFINED IN
THE SILVERLEAF FINANCE II DOCUMENTS, SUCH FUNDS SHALL BE USED
BY BORROWER STRICTLY TO FUND OPERATING EXPENSES IN ACCORDANCE
WITH THE BUSINESS PLAN AND FOR NO OTHER REASON, WITHOUT
AGENT'S PRIOR WRITTEN CONSENT."
21. FACILITY FEE. Section 2.7 is hereby deleted in its entirety and in its
place instead is substituted the following:
"2.7 FACILITY FEE. Borrower acknowledges and agrees that a
Facility Fee in the amount set forth in the Fee Letter is due
and payable exclusively to Lenders. Borrower acknowledges,
agrees and confirms that each Lender has earned its respective
Pro Rata Percentage of the Facility Fee notwithstanding
whether the Loan or any portion is funded and further agrees
that the Facility Fee shall be payable BY BORROWER AT THE
CLOSING OF THE TFC CONDUIT LOAN."
22. GRANT OF SECURITY INTEREST. Section 3.1 is hereby deleted in its
entirety and in its place instead is substituted the following:
"3.1 GRANT OF SECURITY INTEREST. To secure the payment and
performance of the Obligations, for value received, Borrower
unconditionally and irrevocably assigns, pledges and grants to
Agent, as agent for each Lender, a continuing first priority
security interest in and to the Collateral (OTHER THAN THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF FINANCE II
SUBORDINATED NOTE , AS TO WHICH AGENT IS GRANTED A JUNIOR
SECURITY INTEREST AS HEREINAFTER PROVIDED) to further secure
the payment and performance of the Obligations. To further
secure the payment and performance of the Obligations,
Borrower shall also execute and deliver to Agent, as agent for
each Lender: (i) the modifications to the Land Mortgages in
the applicable form attached hereto as Exhibit A, granting
Agent, as agent for each Lender, a first priority mortgage
lien on the Land and (ii) the Additional Resort Collateral
Mortgages, in the applicable form attached hereto as Exhibit
A, granting Agent, as agent for each Lender, a first priority
mortgage lien on that portion of the Additional Resort
Collateral consisting of real property. To further secure the
payment and performance of the Obligations, Borrower shall
further execute and deliver to Agent, as agent for each
Lender: (1) the Additional Resort Collateral Assignment, in
the applicable form attached hereto as Exhibit A, granting
Agent, as agent for each Lender, a first priority security
interest on that portion of the Additional Resort Collateral
consisting of personal property; (2) the Stock Pledge
Agreement, in the applicable form attached hereto as Exhibit
A, granting Agent, as agent for each Lender, a first priority
security interest in the Silverleaf Finance I, Inc. Stock; (3)
the Amended Standby Management Agreement Assignment, in the
applicable form attached hereto as Exhibit A, assigning to
Agent, as agent for each Lender, all of Borrower's right,
title and interest in the Amended Standby
11
Management Agreement Assignment; (4) the Standby Servicing
Agreement Assignment, in the applicable form attached hereto
as Exhibit A, assigning to Agent, as agent for each Lender,
all of Borrower's right, title and interest in the Standby
Servicing Agreement; and (5) THE SILVERLEAF FINANCE II STOCK
AND SUBORDINATED NOTE PLEDGE AGREEMENT, IN THE APPLICABLE FORM
ATTACHED TO THE FIRST AMENDMENT AS EXHIBIT B-1, GRANTING
AGENT, AS AGENT FOR EACH LENDER, A JUNIOR AND SUBORDINATE
SECURITY INTEREST IN THE SILVERLEAF FINANCE II STOCK AND THE
SILVERLEAF FINANCE II SUBORDINATED NOTE, SUBJECT TO THE TERMS
AND CONDITIONS SET FORTH IN THE SPV SUBORDINATION AGREEMENT.
For convenience of administration, Agent is acting as agent
for Lenders under the Agreement. Agent, as such agent, may
execute any of its duties hereunder by or through its agents,
officers or employees and shall be entitled to rely upon the
advice of counsel as to its duties. Agent, as such agent,
shall not be liable to Lenders for any action taken or omitted
to be taken by it in good faith and shall neither be
responsible to Lenders for the consequences of any oversight
or error of judgment nor be answerable to Lenders for any loss
unless the same shall happen through Agent's gross negligence
or willful misconduct. To the extent that Agent, as such
agent, shall not be reimbursed by Borrower for any costs,
liabilities or expenses incurred in such capacity, Lenders
shall reimburse Agent therefor pro rata in accordance with
their respective Pro Rata Percentages (including Agent as one
of Lenders for this purpose). Each Lender agrees that Agent
shall be entitled to take and shall only be required to take,
any action which it is permitted to take under this Agreement.
Notwithstanding anything herein to the contrary, Borrower
acknowledges and agrees as follows:
(a) The Revolving Loan Component shall be secured by:
(i) a first priority security interest in the
Eligible Notes Receivable pledged to Agent on behalf
of Lenders as provided herein, the Mortgages with
respect thereto and that portion of the other
Collateral related thereto;
(ii) a first priority security interest in the
Ineligible Note Portfolio, the Mortgages with respect
thereto and that portion of the other Collateral
related thereto; and
(iii) a second priority security interest in the
Silverleaf Finance I Stock and the Additional Resort
Collateral, subject only to the security interest
securing the Term Loan Component and the Inventory
Loan AND A SUBORDINATE SECURITY INTEREST IN THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF
FINANCE II SUBORDINATED NOTE SUBJECT TO THE SECURITY
INTEREST SECURING THE TERM LOAN COMPONENT AND SUBJECT
TO THE TERMS AND CONDITIONS SET FORTH IN THE SPV
SUBORDINATION AGREEMENT.
(b) The Term Loan Component shall be secured by:
12
(i) a first priority security interest in the
Additional Resort Collateral;
(ii) a first priority security interest in
Borrower's Silverleaf Finance I, Inc. Stock;
(iii) Intentionally Omitted;
(iv) a second priority security interest, subject
only to the security interest securing the Revolving
Loan Component, in the Eligible Notes Receivable
pledged to Agent on behalf of Lenders as provided
herein, the Mortgages with respect thereto and that
portion of the other Collateral related thereto;
(v) second priority security interest, subject
only to the security interest securing the Revolving
Loan Component, in the Ineligible Note Portfolio, the
Mortgages with respect thereto and the other
Collateral related thereto; and
(vi) A SUBORDINATE SECURITY INTEREST IN THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF
FINANCE II SUBORDINATED NOTE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN THE SPV SUBORDINATION
AGREEMENT.
In addition to the foregoing, Borrower acknowledges, agrees
and confirms that the security interest granted to Agent, on
behalf of Lenders, in all other Collateral to secure the Loan,
including the Land, the Standby Management Agreement, the
Standby Servicing Agreement and the other collateral securing
the ▇▇▇▇▇▇ Facility, the Sovereign Facility, the Additional
Credit Facility, the Tranche C Facility and the Inventory Loan
shall be equal in priority as between the Revolving Loan
Component and the Term Loan Component and, with respect to the
collateral securing the ▇▇▇▇▇▇ Facility, the Sovereign
Facility, the Additional Credit Facility, the Tranche C
Facility and the Inventory Loan, subject only to the security
interests securing such facilities. For purposes hereof, the
reference to "collateral securing the ▇▇▇▇▇▇ Facility" and
"collateral securing the Sovereign Facility" shall mean the
Notes Receivable and related Mortgages exclusively assigned to
▇▇▇▇▇▇ or Sovereign in connection with an advance under their
respective loan documents."
23. PURCHASER/ CRITERIA. Section 3.11 is hereby deleted in its entirety and
in its place instead is substituted the following:
"3.11 PURCHASER/CRITERIA. All Eligible Notes Receivable
pledged as Collateral to Agent subsequent to the Effective
Date will be underwritten in a manner consistent with the
Borrower's general underwriting criteria, as approved in
writing by Agent, including, without limitation: (i) the
requirement that a majority of sales shall be made to
Purchasers with minimum annual income as follows: $35,000 for
purchasers residing in the state of Texas, $40,000 for
purchasers residing in the state of Illinois, and $45,000 for
purchasers residing in the state of Massachusetts, (ii) the
requirement that each Purchaser shall have a major credit card
issued in his or her name, with a copy of such credit card
maintained in Borrower's file for such Purchaser, and (iii)
the
13
requirement that the weighted average FICO Credit Bureau
Scores of all Purchasers with respect to which a FICO score
can be obtained be not less than 640, provided that the
aggregate outstanding principal balance of Eligible Notes
Receivable pledged to Agent with respect to which a FICO score
can not be obtained, does not exceed ten percent (10%) of the
aggregate outstanding principal amount of all Eligible Notes
Receivable pledged to Agent. Borrower shall not materially
alter its general underwriting criteria without the prior
written approval of Agent, which approval, Agent may withhold
in its sole discretion. ON A SEMI-ANNUAL BASIS, BORROWER SHALL
PROVIDE AGENT WITH WRITTEN CERTIFICATION THAT THE UNDERWRITING
CRITERIA AS APPROVED BY AGENT REMAIN IN FULL FORCE AND EFFECT
AND HAVE NOT BEEN REVISED OR ALTERED WITHOUT AGENT'S CONSENT."
24. CROSS COLLATERALIZATION. Section 3.13 is hereby deleted in its entirety
and in its place instead is substituted the following:
"3.13 CROSS COLLATERALIZATION. The Collateral also secures the
Obligations of Borrower under the Additional Credit Facility,
the Inventory Loan, and the Tranche C Facility. Upon repayment
of this Loan and the satisfaction by Borrower of all of the
Obligations under this Loan, the Collateral shall continue to
secure the Additional Credit Facility, the Inventory Loan and
the Tranche C Facility, as provided in the documents
evidencing and securing the Additional Credit Facility, the
Inventory Loan and the Tranche C Facility. Borrower further
acknowledges and agrees that upon repayment in full of the
▇▇▇▇▇▇ Facility and/or the Sovereign Facility, Agent's
security interest in the collateral securing such facilities
shall automatically become a first priority security interest
securing the Borrower's Obligations hereunder and under the
Additional Credit Facility, the Tranche C Facility and the
Inventory Facility and Borrower shall take such steps as Agent
may request to deliver such collateral to Agent and to confirm
Agent's first priority security interest therein.
Notwithstanding the foregoing: (a) when the Term Loan
Component and the Inventory Loan are paid in full, the
Additional Resort Collateral shall be released from the Lien
of the security interest granted to Agent hereunder provided:
(i) an Event of Default has not occurred; and (ii) the
Additional Resort Collateral is also released from any lien
granted to Sovereign pursuant to the Sovereign Documents; (b)
when the Term Loan Component and the Inventory Loan are paid
in full, the Silverleaf Finance I, Inc. Stock shall be
released from the Lien of the security interest granted to
Agent hereunder provided: (i) an Event of Default has not
occurred; and (ii) the Silverleaf Finance I, Inc. Stock is
also released from any lien granted to Sovereign pursuant to
the Sovereign Documents; (c) WHEN THE TERM LOAN COMPONENT, THE
REVOLVING LOAN COMPONENT AND THE INVENTORY LOAN ARE PAID IN
FULL, THE SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF
FINANCE II SUBORDINATED NOTE SHALL BE RELEASED FROM THE LIEN
OF THE SECURITY INTEREST GRANTED TO AGENT HEREUNDER PROVIDED:
(I) AN EVENT OF DEFAULT HAS NOT OCCURRED; AND (ii) THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF FINANCE II
SUBORDINATED NOTE ARE ALSO RELEASED FROM ANY LIEN GRANTED TO
SOVEREIGN PURSUANT TO THE SOVEREIGN DOCUMENTS."
14
25. USE OF PROCEEDS/MARGIN STOCK. Section 6.11 is hereby deleted in its
entirety and in its place instead is substituted the following:
"6.11 USE OF PROCEEDS/MARGIN STOCK. (a) The proceeds of the
Loan, the Additional Credit Facility, the Tranche C Facility,
the Inventory Loan, the ▇▇▇▇▇▇ Loan, the Tax Refund, the
Sovereign Loan, the DZ Facility and any cash dividend or other
cash distribution Borrower receives from Silverleaf Finance I,
Inc. OR SILVERLEAF FINANCE II, INC. will be used strictly in
accordance with the Business Plan and for no other purpose and
(b) none of the proceeds of the Loan will be used to purchase
or carry any "margin stock" (as defined under Regulation U of
the Board of Governors of the Federal Reserve System, as in
effect from time to time), and no portion of the proceeds of
the Loan will be extended to others for the purpose of
purchasing or carrying margin stock. None of the transactions
contemplated in the Agreement (including, without limitation,
the use of the proceeds from the Loan) will violate or result
in the violation of Section 7 of the Securities Exchange Act
of 1934, as amended, or any regulations issued pursuant
thereto, including, without limitation, Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System,
12 C.F.R., Chapter 11."
26. RESTRICTIONS OF BORROWER. Section 6.14 is hereby deleted in its
entirety and in its place instead is substituted the following:
"6.14 RESTRICTIONS OF BORROWER. Except for this Agreement and
the Loan Documents, the Inventory Loan Documents, the Tranche
B Loan Documents, the Tranche C Loan Documents, the ▇▇▇▇▇▇
Documents, the Sovereign Documents, THE DZ DOCUMENTS OR THE
SILVERLEAF FINANCE II DOCUMENTS, Borrower will not be, on or
after the date hereof, a party to any contract or agreement
which restricts its right or ability to incur indebtedness or
prohibits Borrower's execution of or compliance with the terms
of this Agreement, the other Loan Documents, the Inventory
Loan Agreement, the Tranche C Facility Loan Agreement, the
Additional Credit Facility Loan Agreement, the ▇▇▇▇▇▇
Documents, the Bond Holder Exchange Documents, the Sovereign
Documents, the DZ Documents or THE SILVERLEAF FINANCE II
DOCUMENTS. Borrower has not agreed or consented to cause or
permit in the future (upon the happening of a contingency or
otherwise) any of the Collateral, whether now owned or
hereafter acquired, to be subject to a Lien except: (i) in
favor of Agent as provided herein; and (ii) with respect to
the Land, the Additional Resort Collateral, the Silverleaf
Finance I. Inc. Stock, the Ineligible Notes Receivable, THE
SILVERLEAF FINANCE II SUBORDINATED NOTE AND THE SILVERLEAF
FINANCE II STOCK, in favor of ▇▇▇▇▇▇, Sovereign AND TFC, as
applicable."
27. REPORTING REQUIREMENTS. Section 7.1(h)(i) ("Monthly Financial Reports")
is hereby deleted in its entirety and in its place instead is substituted the
following:
"(i) MONTHLY FINANCIAL REPORTS. As soon as available and in
any event within FIVE (5) BUSINESS days after the end of each
calendar month, a report showing (i) the trial balance of the
Pledged Notes Receivable, (ii) an aging report on the Pledged
Notes Receivable, (iii) a report detailing the collections on
each of the Pledged Notes
15
Receivable, (iv) a Borrowing Base Report, (v) monthly reports
from the Lockbox Agent required pursuant to the Lockbox
Agreement, and (vi) a report in form satisfactory to Agent
indicating, among other things, the conformity of the
Borrower's business to the Business Plan and any variances
therefrom during the preceding calendar month." IN ADDITION,
BORROWER SHALL DELIVER EACH OF THE MONTHLY FINANCIAL REPORTS
PROVIDED FOR IN THIS SECTION 7.1(h)(i) DIRECTLY TO ▇▇▇▇▇▇▇
BANK AT THE ADDRESS PROVIDED FOR IN SECTION 12.1 OF THE LOAN
AGREEMENT. IN THE EVENT THAT ▇▇▇▇▇▇▇ BANK HAS QUESTIONS OR
COMMENTS RELATING TO SUCH MONTHLY FINANCIAL REPORTS, SUCH
QUESTIONS OR COMMENTS SHALL BE DIRECTED TO AGENT.
28. STANDBY MANAGER, RESORT CONSULTANT AND STANDBY SERVICER. Section 7.1(y)
is hereby deleted in its entirety and in its place instead is substituted the
following:
"(y) STANDBY MANAGER, RESORT CONSULTANT AND STANDBY SERVICER.
Borrower will enter into agreements for the Standby Manager
and the Resort Consultant on or before the Effective Date and
will maintain such agreements in full force and effect. IN THE
EVENT THAT SUCH AGREEMENTS FOR THE STANDBY MANAGER AND THE
RESORT CONSULTANT EXPIRE BEFORE THE FINAL MATURITY DATE, SUCH
AGREEMENTS SHALL BE EXTENDED OR SHALL BE REPLACED, BEFORE
THEIR EXPIRATION, WITH AGREEMENTS FOR A STANDBY MANAGER AND A
RESORT CONSULTANT THAT EXPIRE NO SOONER THAN THE FINAL
MATURITY DATE. Borrower will maintain the agreement for the
Standby Servicer in full force and effect. Borrower agrees
that upon the occurrence of a Default or Event of Default
hereunder: (1) Agent may, with the approval of a majority of
the Borrower's Board of Directors, which approval shall not be
unreasonably withheld or delayed, terminate any then existing
management agreements and replace any existing manager with
such manager as Agent may select, provided however, if: (x)
the obligations have become immediately due and payable in
accordance with Section 9.1 (a) hereof, or (y) Agent elects to
have J & J Limited, Inc. act as manager, then no such approval
of Borrower's Board of Directors shall be required; and (2)
the Standby Servicer will assume full control over the
servicing of all Pledged Notes Receivable, reporting solely to
Agent, as provided in Sections 9.1(i) and 10.14 hereof."
29. ▇▇▇▇▇▇ FACILITY, SOVEREIGN FACILITY, DZ FACILITY AND BOND HOLDER
EXCHANGE TRANSACTION. Section 7.1(bb) is hereby deleted in its entirety and in
its place instead is substituted the following:
"(bb) ▇▇▇▇▇▇ FACILITY, SOVEREIGN FACILITY, DZ FACILITY, TFC
CONDUIT LOAN AND BOND HOLDER EXCHANGE TRANSACTION. Borrower
will comply with each of the terms and conditions of the
▇▇▇▇▇▇ Facility, the Sovereign Facility, the DZ Facility, THE
TFC CONDUIT LOAN and the Bond Holder Exchange Documents and
will promptly deliver to Agent, upon receipt by Borrower,
copies of any notices received by Borrower in connection with
any of the forgoing credit facilities."
30. PROFITABLE OPERATIONS. Section 7.1(cc)(v) is hereby deleted in its
entirety and in its place instead is substituted the following:
16
"(v) PROFITABLE OPERATIONS. Borrower will not permit
Consolidated Net Income (a) for any fiscal year, commencing
with the fiscal year ending December 1, 2002, to be less than
$1.00 and (b) for any two consecutive fiscal quarters
(reviewed on an individual rather than on an aggregate basis)
to be less than $1.00."
31. NET SECURITIZATION CASH FLOW. Section 7.1(dd) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(dd) NET SECURITIZATION CASH FLOW. Borrower will cause
Silverleaf Finance I, Inc. to declare, at least quarterly, a
cash dividend payable to Borrower, in an amount equal to the
Net Securitization Cash Flow in respect of Silverleaf Finance
I, Inc. for such quarter. If no Default or Event of Default
has occurred, Borrower agrees to use such dividends for
payment of Operating Expenses as provided in the Business Plan
and for no other purpose. If a Default or Event of Default has
occurred, then all such dividends shall be paid directly to
Agent, as agent for each Lender, and applied by Agent in
repayment of the Term Loan Component as provided in Section
2.4(b). Borrower shall provide Agent with notice of Silverleaf
Finance I, Inc.'s declaration of a cash dividend, together
with a certification that: (i) states whether a Default or
Event of Default exists, and (ii) contains a calculation of
the Net Securitization Cash Flow.
Borrower will cause Silverleaf Finance II, Inc. to declare, at
least quarterly, a cash dividend payable to Borrower and/or a
payment in respect of the Silverleaf Finance II Subordinated
Note in an aggregate amount equal to the Net Securitization
Cash Flow in respect of Silverleaf Finance II, Inc. for such
quarter. If no Default or Event of Default has occurred,
Borrower agrees to use such dividends or payments for payment
of Operating Expenses as provided in the Business Plan and for
no other purpose. If a Default or Event of Default has
occurred, then all such dividends or payments, after payment
of all amounts then due and payable by Borrower to TFC in
respect of the Term Loan Component in accordance with Section
2.4(h) hereof, shall be paid directly to Agent, as agent for
each Lender, and applied by Agent in repayment of the Term
Loan Component and the Revolving Loan Component on a pro rata
basis, as provided in Section 2.4(b). Borrower shall provide
Agent with notice of Silverleaf Finance II, Inc.'s declaration
of a cash dividend or a payment on the Silverleaf Finance II
Subordinated Note, together with a certification that: (i)
states whether a Default or Event of Default exists, and (ii)
contains a calculation of the Net Securitization Cash Flow."
32. RESTRICTIONS ON TRANSFERS. Section 7.2(b) is hereby deleted in its
entirety and in its place instead is substituted the following:
"(b) RESTRICTIONS ON TRANSFERS. Except as hereinafter
specifically provided, Borrower shall not, whether voluntarily
or involuntarily, by operation of law or otherwise, (i)
without obtaining the prior written consent of Agent (which
consent may be given, withheld or conditioned by Agent in
Agent's sole discretion), transfer, sell,
17
pledge, convey, hypothecate, factor or assign all or any
portion of the Collateral, the Encumbered Intervals, the
Common Elements relating to the Encumbered Intervals or any
Resort facilities or amenities, or contract to do any of the
foregoing, including, without limitation, pursuant to options
to purchase, and so-called "installment sales contracts",
"land contracts", or "contracts for deed", PROVIDED THAT THE
FOREGOING RESTRICTION ON TRANSFERS SHALL NOT APPLY TO THE
CONVEYANCE OF SPV ASSETS TO THE SPV IN ACCORDANCE WITH THE
SILVERLEAF FINANCE II DOCUMENTS, (ii) without obtaining the
prior written consent of Agent (which consent may be given,
withheld or conditioned by Agent in Agent's sole discretion),
lease or license all or any portion of the Collateral, the
Encumbered Intervals, the Common Elements relating to the
Encumbered Intervals or any Resort facilities or amenities
(EXCEPT FOR THE LICENSE CREATED IN FAVOR OF SPV UNDER ANY
LICENSE AGREEMENT WITH BORROWER, SILVERLEAF CLUB OR ANY
TIMESHARE OWNERS ASSOCIATION, TO USE OR ACCESS THE RESERVATION
SYSTEM OR RELATED COMPUTER HARDWARE OR SOFTWARE FOR ANY
RESORT), or change the legal or actual possession or use
thereof, (iii) permit the assignment, transfer, delegation,
change, modification or diminution of the duties or
responsibilities of Borrower, of any manager of the Resort
approved by Agent as manager of the Resort (except for an
assignment of such duties to a professional management company
or companies reasonably acceptable to Agent in advance)
without obtaining the prior written consent of Agent (which
consent shall not be unreasonably withheld), or (iv) without
obtaining the prior written consent of Agent (which consent
may be given, withheld or conditioned by Agent in Agent's sole
discretion), cause or permit the assignment, pledge or other
encumbrance of any of the Operating Contracts or all or any
portion of Borrower's right, title or interest in the
Declaration. Without limiting the generality of the preceding
sentence, and subject to the terms of this Agreement, the
prior written consent of Agent (as specified above) shall be
required for (A) any transfer of the Encumbered Intervals, the
Common Elements relating to the Encumbered Intervals or any
Resort facilities or amenities or any part thereof made to a
subsidiary or Affiliate or otherwise, (B) any transfer of all
or any part of the Encumbered Intervals, the Common Elements
relating to the Encumbered Intervals or any Resort facilities
or amenities by Borrower to its stockholders or Affiliates or
vice versa, and (C) any corporate merger or consolidation,
disposition or other reorganization, except as permitted in
Section 7.1(c). In the event that Agent is willing to consent
to a transfer which would otherwise be prohibited by this
Section 7.2(b) Agent may condition its consent on such terms
as it desires, including, without limitation, an increase in
the Interest Rate and the requirement that Borrower pay a
transfer fee, together with any expenses incurred by Agent in
connection with the granting of such consent (including,
without limitation, attorneys' fees and expenses). If Borrower
violates the terms of this Section 7.2(b), in addition to any
other rights or remedies which Agent may have herein, in any
other Loan Document, or at law or in equity, Agent may by
written notice to Borrower increase, effective immediately as
of the date of such violation, the Interest Rate to the
Default Rate."
33. TRANSACTIONS WITH AFFILIATES. Section 7.2(d) is hereby deleted in its
entirety and in its place instead is substituted the following:
18
"(d) TRANSACTIONS WITH AFFILIATES. EXCEPT AS PROVIDED IN THE
SILVERLEAF FINANCE II DOCUMENTS, without the prior written
consent of Agent, which shall not unreasonably be withheld,
Borrower will not enter into any transaction with any
Affiliate in connection with the Resorts, including, without
limitation, relating to the purchase, sale or exchange of any
assets or properties or the rendering of any service, except
in the ordinary course of, and pursuant to the reasonable
requirements of, the operations of the Resorts and upon fair
and reasonable terms."
34. TIMESHARE REGIME. Section 7.2(g) is hereby deleted in its entirety and
in its place instead is substituted the following:
"(g) TIMESHARE REGIME. Without Agent's prior written consent,
which consent shall not be unreasonably withheld as to changes
necessary to implement the Business Plan, Borrower shall not
amend, modify or terminate the Declarations or other Timeshare
Documents, or any other restrictive covenants, agreements or
easements regarding the Resorts (except for routine
non-substantive modifications which have no impact on the
Collateral AND EXCEPT FOR AMENDMENTS OR MODIFICATIONS OF THE
TIMESHARE DOCUMENTS AND/OR DECLARATIONS, A LIST OF WHICH IS
ATTACHED TO THE FIRST AMENDMENT AS EXHIBIT C-1). Except as
otherwise provided herein or in the Sovereign Documents,
Borrower shall not assign its rights as "developer" under the
Declarations without Agent's prior written consent, or file or
permit to be filed any additional covenants, conditions,
easements or restrictions against or affecting the Resorts (or
any portion thereof) without Agent's prior written consent,
which consent shall not be unreasonably withheld."
35. COLLATERAL. Section 7.2(i) is hereby deleted in its entirety and in its
place instead is substituted the following:
"(i) COLLATERAL. Borrower shall not take any action (nor
permit or consent to the taking of any action) which might
impair the value of the Collateral or any of the rights of
Lenders in the Collateral, EXCEPT WITH RESPECT TO THE
SILVERLEAF FINANCE II STOCK AND THE SILVERLEAF FINANCE II
SUBORDINATED NOTE AS PROVIDED IN THE SILVERLEAF FINANCE II
DOCUMENTS, nor shall Borrower cause or permit any amendment to
or modification of the form or terms of any of the Pledged
Notes Receivable, Mortgages or, except as specifically
provided herein above, the other Timeshare Documents."
36. MODIFICATIONS OF ▇▇▇▇▇▇ DOCUMENTS, DZ DOCUMENTS, BOND HOLDER EXCHANGE
DOCUMENTS, SOVEREIGN DOCUMENTS, SILVERLEAF FINANCE II DOCUMENTS AND OTHER DEBT
INSTRUMENTS. Section 7.2(k) is hereby deleted in its entirety and in its place
instead is substituted the following:
"(k) MODIFICATIONS OF ▇▇▇▇▇▇ DOCUMENTS, DZ DOCUMENTS, BOND
HOLDER EXCHANGE DOCUMENTS, SOVEREIGN DOCUMENTS, SILVERLEAF
FINANCE II DOCUMENTS AND OTHER DEBT INSTRUMENTS. Borrower
shall not amend or modify the ▇▇▇▇▇▇ Documents, the Sovereign
Documents, DZ Documents, Bond Holder Exchange Documents, THE
SILVERLEAF FINANCE II DOCUMENTS or the documents evidencing
any other indebtedness
19
of Borrower, nor shall Borrower extend, modify, increase or
terminate the ▇▇▇▇▇▇ Facility, DZ Facility, the Bond Holder
Exchange Transaction, the Sovereign Facility, the TFC CONDUIT
LOAN or any other credit facility or loan, without the prior
written consent of Lender, which consent shall not be
unreasonably withheld."
37. DEFAULT BY BORROWER IN OTHER AGREEMENTS. Section 8.1(m) is hereby
deleted in its entirety and in its place instead is substituted the following:
"(m) DEFAULT BY BORROWER IN OTHER AGREEMENTS. Except for any
Specified Event of Default (as provided in the Forbearance
Agreement), which Specified Events of Default shall include a
prior existing default under the ▇▇▇▇▇▇ Facility or the
Sovereign Facility and for any "Waived Defaults" under the
November Letter Agreement, which "Waived Defaults" include
prior existing defaults under the ▇▇▇▇▇▇ Facility or the
Sovereign Facility, any default, AS DEFINED IN THE APPLICABLE
LOAN AGREEMENT, by Borrower (i) in the payment of any
indebtedness to any Lender, including any indebtedness owed to
Agent under the ▇▇▇▇▇▇ Facility, DZ Facility, Sovereign
Facility, Bond Holder Exchange Transaction, Tranche C
Facility, Additional Credit Facility, the Inventory Loan, OR
THE TFC CONDUIT LOAN, (ii) in the payment or performance of
other indebtedness for borrowed money or obligations secured
by any part of the Resort; (iii) in the payment or performance
of other material indebtedness or obligations (material
indebtedness or obligations being defined for purposes of this
provision as any indebtedness or obligation in excess of
$200,000) where such default accelerates or permits the
acceleration (after the giving of notice or passage of time or
both) of the maturity of such indebtedness, or permits the
holders of such indebtedness to elect a majority of the board
of directors of Borrower (whether or not such default[s] have
been waived by such holder) or (iv) the acceleration by
▇▇▇▇▇▇, Sovereign, DZ or the bondholders of their respective
credit facilities OR THE ACCELERATION OF THE TFC CONDUIT
LOAN."
38. AUTHORIZATION AND ACTION. Section 13.1 is hereby deleted in its
entirety and in its place instead is substituted the following:
"13.1 AUTHORIZATION AND ACTION. Each Lender hereby accepts the
appointment of and irrevocably (but subject to Section 13.8)
authorizes Agent to take such action as Agent on its behalf
and to exercise such powers as are expressly delegated to
Agent by the terms hereof, together with such powers as are
reasonably incidental thereto, INCLUDING BUT NOT LIMITED TO
THE EXECUTION, DELIVERY AND PERFORMANCE OF THE SPV
SUBORDINATION AGREEMENT AS DEFINED HEREIN. Agent shall not be
required to take any action which exposes Agent to personal
liability or which is contrary to this Agreement or applicable
law. Agent agrees to give to each Lender prompt notice of each
notice given to it by Borrower pursuant to the terms of this
Agreement. The appointment and authority of Agent hereunder
shall terminate upon the payment of the Obligations in full."
39. AGENT'S RESPONSIBILITIES. The first paragraph of Section 13.11(d) is
amended as follows:
20
"(d) Except as otherwise provided in this Agreement, Agent
shall be entitled, at its option, from time to time and at any
time, to enter into any amendment of, or waive compliance with
the terms of the Loan Agreement without obtaining prior
approval from any Lender, provided that, without the prior
approval of each Lender in each instance, Agent may not TAKE
ANY OF THE FOLLOWING ACTIONS WITH RESPECT TO THE REVOLVING
LOAN COMPONENT: (i) reduce the principal amount of the Loan;
(ii) change the Borrowing Base (advance rate) (provided,
however, Agent may reduce the Borrowing Base for a limited
time (not more than sixty (60) days) to adjust an over-advance
circumstance); (iii) change the definition of Eligible Notes
Receivable; (iv) decrease the Interest Rate; (v) extend the
Final Maturity Date of the Loan; (vi) waive or excuse any
payment; (vii) release any material Collateral or any material
third party obligor (except as expressly authorized by this
Agreement in the normal course of Borrower's business); (viii)
waive an Event of Default; or (ix) waive any of the Advance
requirements set forth in Section 5.1. Notwithstanding the
foregoing, Agent may take any such actions referred to in such
preceding sentences and each Lender shall be bound thereby
with the consent of such Lenders (including Agent as a Lender
for this purpose) whose total Pro Rata Payment Percentage is
equal to or exceeds sixty-six and two-thirds percent (66 2/3%)
of the outstanding principal balance of the Loan. AGENT SHALL
BE ENTITLED, AT IS OPTION, FROM TIME TO TIME AND AT ANY TIME,
TO ENTER INTO ANY AMENDMENT OF, OR WAIVE COMPLIANCE WITH THE
TERMS OF THE LOAN AGREEMENT WITHOUT OBTAINING PRIOR APPROVAL
FROM ANY LENDER INSOFAR AS ANY SUCH ACTIONS RELATE TO OR
AFFECT THE TERM LOAN COMPONENT."
40. DESCRIPTION OF LENDERS. Schedule A to the Loan Agreement is hereby
deleted in its entirety and in its place instead is substituted the amended
Schedule A-1 ATTACHED TO THE FIRST AMENDMENT.
41. CONDITIONS PRECEDENT. This First Amendment shall not be effective until
all of the following conditions have been satisfied:
(a) APPROVAL OF DOCUMENTS. Borrower has delivered to
Agent (with copies to Agent's counsel), and Agent has reviewed
and approved in its sole discretion, the form and content of
all of the items specified in Subsections (i) through (iv)
below (the "SUBMISSIONS"). Agent shall have the right to
review and approve any changes to the form of any of the
Submissions. If Agent disapproves of any changes to any of the
Submissions, Agent shall have the right to require Borrower
either to cure or correct the defect objected to by Agent or
to elect not to fund any Advance. Under no circumstances shall
Agent's failure to approve or disapprove a change to any of
the Submissions be deemed to be an approval of such
Submissions. All of the Submissions were and shall be prepared
at Borrower's sole cost and expense.
(i) A certificate in the form attached to THE
FIRST AMENDMENT as Exhibit D-1 to be signed by the
president, vice president or secretary of the
Borrower;
(ii) Copies of any amendments to the articles of
incorporation/charter and bylaws of Borrower not
previously delivered to Agent, certified to be true,
correct and complete by Borrower and the Secretary of
State of the State
21
of Texas and current certificates of good standing
for Borrower for the State of Texas and states where
the Resorts are located, a current certificate of
authority to conduct business by the Secretary of
State in each state in which Borrower conducts
business;
(iii) A certificate of the Secretary of Borrower
certifying the adoption by the Board of Directors of
Borrower of a resolution authorizing Borrower to
enter into and execute the First Amendment and all
such documents requested by Agent in the form
attached to THE FIRST AMENDMENT as Exhibit E-1; and
(iv) A certificate of the secretary or assistant
secretary of Borrower certifying the incumbency, and
verifying the authenticity of the signatures of the
specified officers of Borrower authorized to sign
this First Amendment and all such documents requested
by Lender in the form attached to THE FIRST AMENDMENT
as Exhibit G-1.
(b) EXECUTION AND DELIVERY OF DOCUMENTS. Borrower shall
have delivered to Agent the following:
(i) The Silverleaf Finance II Documents;
(ii) Closing Opinions of Counsels for Borrower;
(iii) The Silverleaf Finance II Stock and
Subordinated Note Pledge Agreement;
(iv) Amended and Restated Term Loan Component
Note;
(v) Revised Form of Borrower's Certificate and
Request for Advance;
(vi) Bailee Agreement; and
(vii) Such other agreements, documents,
instruments, certificates and materials as Agent may
request to evidence the Indebtedness, to evidence and
perfect the rights and Liens and security interests
of Agent contemplated by the Loan Documents, and to
effectuate the transactions contemplated herein.
(c) EXECUTION OF AMENDMENTS BY SOVEREIGN AND DZ BANK.
Agent shall have received evidence, in form and substance
satisfactory to Agent, that Sovereign and DZ have executed
amendments to the Sovereign Documents and DZ Documents,
respectively, in connection with the TFC Conduit Loan and
Agent shall have consented to such amendments.
(d) NECESSARY CONSENTS OBTAINED. Agent shall have
received evidence, in form and substance satisfactory to
Agent, that the consent of each party entitled to consent to
this First Amendment has been obtained.
(e) FEES. Borrower shall have paid all fees of all
Lenders in connection with the TFC Conduit Loan and this First
Amendment.
42. FURTHER DOCUMENTATION. Borrower agrees to execute and deliver to Lender
any and all additional documentation as Lender may now or hereafter require in
order to effectuate the terms and conditions of this First Amendment.
22
43. EFFECT OF AMENDMENT. The Loan Agreement, as herein amended, shall
remain in full force and effect.
44. RATIFICATION AND CONFIRMATION. Except as herein expressly amended,
Borrower hereby ratifies, confirms, assumes and agrees to be bound by all of
representations, warranties, statements, covenants and agreements set forth in
the Loan Agreement and the other Loan Documents, as previously amended. The
Borrower reaffirms, restates and incorporates by reference all of the
representations, warranties, covenants and agreements made in the Loan Documents
as if the same were made as of this date. The Borrower agrees to pay the Loan
and all related expenses, as and when due and payable in accordance with the
Loan Agreement and the other Loan Documents, and to observe and perform the
Obligations, and do all things necessary which are not prohibited by law to
prevent the occurrence of any Event of Default. In addition, to further secure,
and to evidence and confirm the securing of, the prompt and complete payment and
performance by the Borrower of the Loan and all of the Obligations, for value
received, Borrower unconditionally and irrevocably assigns, pledges and grants
to Agent and each Lender, and hereby confirms or reaffirms the prior granting to
Agent and each Lender of, a continuing first priority Lien, mortgage and
security interest in and to all of the Collateral, except as otherwise set forth
herein, whether now existing or hereafter acquired. Also, as provided in the
Loan Documents, the Loan is and shall be further secured by the Liens and
security interests in favor of Agent and each Lender in the properties and
interests relating to Additional Eligible Resorts, which now or hereafter serve
as collateral security for any Obligations. Upon satisfaction of the
requirements for approval by Agent of Additional Resorts, Borrower shall record,
or cause to be recorded, such mortgages, deeds of trust, deeds to secure debt,
assignments, pledges, security agreements and UCC Financing Statements in the
appropriate public records of the state in which each Resort is located to
further evidence and perfect Agent and each Lender's Lien on the Collateral.
Borrower agrees to deliver or cause to be delivered by its Affiliates, such
mortgages, deeds of trust, deeds to secure debt, assignments, pledges, security
agreements and UCC Financing Statements as Agent may deem necessary to further
evidence and perfect the Agent and each Lender's Lien on the Collateral.
45. ESTOPPEL. Borrower acknowledges, agrees and confirms that: (a) Advances
under the Loan Agreement have been made prior to the date hereof; (b) all such
Advances made prior to the Closing Date were made in favor of the Original
Borrower and the Borrower in respect of the Existing Eligible Resorts; (c)
Advances made prior to the date of the First Amendment are deemed as having been
made for the benefit of the Borrower and Borrower acknowledges and agrees that
Borrower received a direct and substantial financial benefit from such Advances
and (d) immediately prior to the date of the First Amendment, and without giving
effect to any Advances that may be made pursuant to the First Amendment, the
status of the Loan, including the outstanding principal balance thereof is as
reflected in the Loan Funding Report delivered to and approved by Lender in
connection with the closing of the First Amendment.
The Loan constitutes valuable consideration to the Borrower, which
consideration is uninterrupted and continuous since the dates on which the Loan
was first made. This First Amendment and the other Loan Documents and the Loan
modifications and transactions provided for or contemplated hereunder or
thereunder, shall in no way adversely affect the Lien or perfection or priority
of any Lien of Lender as of the date hereof in and to any Collateral, and are
not intended
23
to constitute, and do not constitute or give rise to, any novation, cancellation
or extinguishment of any of Borrower's Obligations existing as of the Closing
Date to Lender, or of any interests owned or held by Lender (and not previously
released) in and to any of the Collateral; it being the intention of the parties
that the transactions provided for or contemplated herein shall be effectuated
without any interruption in the continuity of the value and consideration
received by Borrower, and of the attachment, perfection, priority and
continuation in favor of Lender in and to all Collateral and proceeds.
46. EFFECTIVE DATE. Upon satisfaction of the conditions precedent set forth
in Section 41 hereof, this First Amendment shall be effective as of the First
Amendment Effective Date, as defined in the Loan Agreement as amended hereby.
47. MAXIMUM OBLIGATION OF LENDER UNDER THE LOAN, THE ADDITIONAL CREDIT
FACILITY AND THE INVENTORY LOAN. Borrower acknowledges, agrees and confirms that
notwithstanding anything to the contrary herein, in any other Loan Document or
in any document evidencing or securing the Additional Credit Facility or the
Inventory Loan, Lender shall not be obligated to fund any Advance hereunder,
which when taken together with the loans or advances made by the Lender to the
Borrower under this Agreement, the Additional Credit Facility or the Inventory
Loan, would cause the aggregate amount of such loans and advances by the Lender
to Borrower to exceed the maximum aggregate amount as set forth in the Loan
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed on their behalf as of the day and year first written above.
Witnessed By: TEXTRON FINANCIAL CORPORATION
[illegible]
-----------------------
By /S/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
-------------------------
/S/ ▇▇▇▇▇▇▇ CONCORD Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇▇
---------------------- Its: Vice President
SILVERLEAF RESORTS, INC.
/S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------
By: /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------
/S/ LAINE CLOSE Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------- Its: CFO
24
STATE OF CONNECTICUT )
) ss: East Hartford
COUNTY OF HARTFORD )
At East Hartford in said County and State on this 22nd day of
December, 2003, personally appeared ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, duly authorized Vice
President of Textron Financial Corporation, and he acknowledged the foregoing
instrument by him signed and sealed to be his free act and deed and the free act
and deed of Textron Financial Corporation.
Before me: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Notary Public in and for said State
My Commission Expires:
Commissioner of the Superior Court
STATE OF Texas )
) ss:
COUNTY OF Dallas )
At Dallas in said County and State on this 19th day of December, 2003,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. , duly authorized officer of
SILVERLEAF RESORTS, INC., and he/she acknowledged the foregoing instrument by
him/her signed and sealed to be his/her free act and deed and the free act and
deed of Silverleaf Resorts, Inc., a Texas corporation, on behalf of the
corporation.
Before me: /S/ ▇. ▇▇▇▇▇ CLOSE
---------------------
Notary Public in and for said State
My Commission Expires:
25
List of Exhibits and Schedules:
EXHIBIT A-1 Term Loan Component Note
EXHIBIT B-1 Stock and Subordinated Note Pledge Agreement
EXHIBIT C-1 Amendments to Timeshare Documents
EXHIBIT D-1 Borrower's Certificate
EXHIBIT E-1 Authorizing Resolution
EXHIBIT F-1 Business Plan
EXHIBIT G-1 Incumbency Certificate
SCHEDULE A-1 Description of Lenders