FIRST AMENDMENT TO INVENTORY LOAN AND SECURITY AGREEMENT
Ex
10.1
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is
dated
as of October 5, 2005 (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 Inventory 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 is hereby amended as follows:
2.01
Amendment
to Section 7.9.
Section
7.9 of the Loan Agreement is hereby amended and restated in its entirety
to read
as follows:
"7.9
Transactions
with Affiliates; Principal Properties. Borrower
shall not enter into any transaction including, without limitation, the
purchase, sale or exchange of real or personal property of the Borrower or
the
rendering of any service with any Affiliate of Borrower or any Executive
Management Member (i) except upon fair and reasonable terms no less favorable
to
Borrower than would be obtained in a comparable arm's-length transaction
with a
Person not an Affiliate, and (ii) provided such transaction will not constitute,
or will not reasonably be expected to constitute, a Material Adverse
Effect."
ARTICLE
III
Conditions
Precedent
3.01
Conditions
to Effectiveness. The
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent in a manner satisfactory to Lender, unless specifically
waived in writing by Lender:
(a)
Lender shall have received this Amendment, duly executed by the Borrower
and
Lender.
(b)
Lender shall have received a copy of the resolutions in form and substance
reasonably satisfactory to Lender, of the board of directors of Borrower
authorizing the execution, delivery and performance of this Amendment, certified
by the secretary of the Borrower as of the Closing Date, and such certificate
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such certificate.
(c)
The
representations and warranties contained herein and in the Loan Agreement,
as
amended hereby, and the Loan Documents, shall be tree and correct as of the
date
hereof, as if made on the date hereof,
(d)
No
Default or Event of Default shall have occurred and be continuing, unless
such
Default or Event of Default has been otherwise specifically waived in writing
by
Lender.
(e)
All
corporate proceedings taken in connection with the transactions contemplated
by
this Amendment and all documents, instruments and other legal matters incident
thereto shall be satisfactory to Lender,
(f)
All
corporate and other proceedings, mad all documents, instruments and other
legal
matters in connection with the execution of this Amendment shall be satisfactory
in form and substance to Lender and its counsel.
4.01
No
Waiver,
Borrower
is hereby notified that irrespective of (i) any waivers or consents previously
granted by Lender regarding the Loan Agreement and the Loan Documents, (ii)
any
previous failures or delays of Lender in exercising any right, power or
privilege under the Loan Agreement or the Loan Documents, or (iii) any previous
failures or delays of Lender in tire monitoring or' in the requiring of
compliance by Borrower with the duties, obligations, and agreements of Borrower
in the Loan Agreement and the Loan Documents, Borrower will be expected to
comply strictly with its duties, obligations and agreements under the Loan
Agreement and the Loan Documents.
Except
as
expressly provided in this Amendment, nothing contained in this Amendment
or any
other communication between Lender and the Borrower shall be a waiver of
any
past, present or future violation, Default or Event of Default of Borrower
under
the Loan Agreement or any Loan Document. Similarly, Lender hereby expressly
reserves any rights, privileges and remedies under the Loan Agreement and
each
Loan Document that Lender may have with respect to each violation, Default
or
Event of Default, and any failure by Lender to exercise any right, privilege
or
remedy as a result of the violations set forth above shall not directly or
indirectly in any way Whatsoever either (i) impair, prejudice or otherwise
adversely affect the rights of Lender, except as set forth herein, at any
time
to exercise any right, privilege or remedy in connection with the Loan Agreement
or any Loan Document, (ii) amend or alter any provision of the Loan Agreement
or
any Loan Document or any other contract or instrument, or (iii) constitute
any
course of dealing or other basis for altering any obligation of Borrower
or any
rights, privilege or remedy of Lender under the Loan Agreement or any Loan
Document or any other contract or instrument. Nothing in this Amendment shall
be
construed to be a consent by Lender to any prior, existing or future violations
of the Loan Agreement or any Loan Document.
ARTICLE
V
Ratifications,
Representations and Warranties
5.01
Ratifications.
The
terms
and provisions set forth in this Amendment shall modify and supersede all
inconsistent temps and provisions set forth in the Loan Agreement and the
Loan
Document, and, except as expressly modified and superseded by this Amendment,
the terms and provisions of the Loan Agreement and the Loan Document are
ratified and confirmed and shall continue in full force and effect. The Borrower
and Lender agree that the Loan Agreement and the Loan Document, as amended
hereby, shall continue to be legal, valid, binding and enforceable in accordance
with their respective terms.
5.02
Representations
and Warranties.
The
Borrower hereby represents and warrants to Lender that (a) the execution,
delivery and performance of this Amendment and any and all Loan Document
executed and/or delivered in connection herewith have been authorized by
all
requisite corporate action on the part of the Borrower and will not violate
the
organizational documents or governing documents of Borrower; ('u) the
representations and warranties contained in the Loan Agreement, as amended
hereby, and any Loan Document are tree and correct on and as of the date
hereof
and on and as of the date of execution hereof as though made on and as of
each
such date; (c) no Default or Event of Default under the Loan Agreement, as
amended hereby, has occurred and is continuing, unless such Default or Event
of
Default has been specifically waived in writing by Lender; and (d) the Borrower
is in full compliance with all covenants and agreements contained in the
Loan
Agreement and the Loan Document, as amended hereby; (e) Borrower has not
amended
its organizational documents or its governing documents since the date of
the
Loan Agreement.
ARTICLE
VI
Miscellaneous
Provisions
6.01
Survival
of Representations and Warranties.
All
representations and warranties made in the Loan Agreement or any Loan Document,
including, without limitation, any document furnished in connection with
this
Amendment, shall survive the execution and delivery of this Amendment and
the
Loan Document, and no investigation by Lender or any closing shall affect
the
representations and warranties or the fight of Lender to rely upon
them.
6.02
Reference
to Loan Agreement.
Each
of
the Loan Agreement and the Loan Document, and any and all documents or
instruments now or hereafter executed and delivered pursuant to the temps
hereof
or pursuant to the terms of the Loan Agreement, as amended hereby, are hereby
amended so that any reference in the Loan Agreement and such Loan Document
to
the Loan Agreement shall mean a reference to the Loan Agreement, as amended
hereby.
6.03
Expenses
of Lender.
As
provided in the Loan Agreement, the Borrower agrees to pay on demand all
costs
and expenses incurred by Lender in connection with the preparation, negotiation,
mad execution of this Amendment and the Loan Documents executed pursuant
hereto,
including, without limitation, the costs and fees of Lender's legal counsel,
and
all costs and expenses incurred by Lender in connection with the enforcement
or
preservation of any rights under the Loan Agreement, as amended hereby, or
any
Loan Document, including, without, limitation, the costs and reasonable fees
of
Lender's legal counsel in connection with any such enforcement or preservation
efforts;
6.04
Severability.
Any
provision of this Amendment hold by a court of competent jurisdiction to
be
invalid or unenforceable shall not impair or invalidate the remainder of
this
Amendment and the effect thereof shall be confined to the provision so held
to
be invalid or unenforceable.
6.05
Successors
and Assigns.
This
Amendment is binding upon and shall inure to the benefit of Lender and the
Borrower and their respective successors and assigns, except that the Borrower
may not assign or transfer any of their rights or obligations hereunder without
the prior written consent of Lender.
6.06
Counterparts.
This
Amendment may be executed in one or more counterparts, each of which when
so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument.
6.07
Effect
of Waiver.
No
consent or waiver, express or implied, by Lender to or for any breach of
or
deviation from any covenant or condition by the Borrower shall be deemed
a
consent to or waiver of any other breach of the same or any other covenant,
condition or duty.
6.08
Headings.
The
headings, captions, and arrangements used in this Amendment are for convenience
only and shall not affect the interpretation of this Amendment,
6.09
Applicable
Law.
THIS
AMENDMENT AND ALL LOAN DOCUMENT EXECUTED PURSUANT HERETO SHALL BE DEEMED
TO HAVE
BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED
IN
ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND.
6.10
Final
Agreement.
THE
LOAN
AGREEMENT AND THE LOAN DOCUMENT, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE
EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE
DATE
THIS
AMENDMENT IS EXECUTED. THE LOAN AGREEMENT AND THE LOAN DOCUMENTS, AS AMENDED
HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE
OR
AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN
AGREEMENT SIGNED BY THE BORROWER AND LENDER.
6.11
Release..
THE
BORROWER HEREBY ACKNOWLEDGES THAT IT HAS NO DEFENSE, COUNTERCLAIM, OFFSET,
CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT CAN
BE
ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO REPAY
THE
"OBLIGATIONS" OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE
FROM LENDER. THE BORROWER HEREBY VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER
DISCHARGES LENDER, ITS PREDECESSORS, LENDER, EMPLOYEES, SUCCESSORS AND ASSIGNS,
FROM ALL POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS,
EXPENSES, AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR
UNANTICIPATED, SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL,
AT
LAW OR IN EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS
AMENDMENT IS EXECUTED, WHICH THE BORROWER MAY NOW OR HEREAFTER HAVE AGAINST
LENDER, ITS PREDECESSORS, LENDER, EMPLOYEES, SUCCESSORS AND ASSIGNS, IF ANY,
AND
I1LRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT, TORT, VIOLATION
OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM ANY "LOANS", INCLUDING,
WITHOUT LIMITATION, ANY CONTRACTING FOR, CHARGING, TAKING, RESERVING, COLLECTING
OR RECEIVING INTEREST IN EXCESS OF THE HIGHEST LAWFUL 1LATE APPLICABLE, THE
EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT OR LOAN DOCUMENT,
AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
[The
Remainder of this Page Intentionally Left Blank]
IN
WITNESS WHEREOF, this Amendment has been duly executed on the date first
written
above.
LENDER:
CAPITALSOURCE
FINANCE LLC,
a
Delaware limited liability company
By:. /S/
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title: General
Counsel
SILVERLEAF
RESORTS, INC.,
a
Texas
corporation
By: /S/
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇
▇.
▇▇▇▇▇, ▇▇.
Title: Chief
Financial Officer