Ex. 10.49
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT (this "AMENDMENT") is dated as of March 5, 2004 by and among (i)
Silverleaf Resorts, Inc., a Texas corporation (the "BORROWER"), (ii) Sovereign
Bank, a federally chartered savings bank ("SOVEREIGN"), and Liberty Bank, a
Connecticut non-stock mutual savings bank, as the Banks (the "BANKS"), and (iii)
Sovereign Bank, a federally chartered savings bank, as agent for the Banks (the
"AGENT").
WITNESSETH:
WHEREAS, the Borrower, the Banks, and the Agent have entered into that
certain Amended and Restated Revolving Credit Agreement, dated as of April 30,
2002, as amended by the First Amendment to Amended and Restated Revolving Credit
Agreement, dated as of September 30, 2002, as amended by the Second Amendment to
Amended and Restated Revolving Credit Agreement, dated as of October 1, 2003,
and as amended by the Third Amendment to Amended and Restated Revolving Credit
Agreement, dated as of December 19, 2003 (the "THIRD AMENDMENT") (as so amended,
the "CREDIT AGREEMENT"), pursuant to which the Banks have extended credit to the
Borrower on the terms set forth therein;
WHEREAS, the Borrower has requested that the Banks and the Agent agree
to make a clarifying amendment to the definition of "Eligible Consumer Loan
Amount" therein and certain other amendments in connection with a repayment of
the inventory loan component of the Xxxxxx Facility (as defined in the Credit
Agreement); and
WHEREAS, the Banks, the Agent and the Borrower have agreed to make such
amendments subject to and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not
expressly defined herein shall have the same respective meanings given to such
terms in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.1.
(a) The definition of "Eligible Consumer Loan Amount" in Section
1.1 of the Credit Agreement is hereby amended by replacing the "and" after
clause (i) thereof with "or".
(b) The definition of "Intercreditor Agreement" in Section 1.1 of
the Credit Agreement is hereby amended and restated in its entirety as follows:
"Intercreditor Agreement. The Second Amended and Restated Intercreditor
Agreement, dated as of March 5, 2004, among the Agent, Textron and Xxxxxx and
acknowledged and agreed to by the Borrower."
(c) The definition of "Intercreditor Amendment" in Section 1.1 of
the Credit Agreement is hereby deleted in its entirety.
3. AMENDMENT TO SECTION 8.19. Section 8.19 of the Credit
Agreement is hereby amended by inserting prior to the first sentence thereof the
following: "Subject, in the case of the Xxxxxx Documents, to the express waiver
by the Agent set forth in the Intercreditor Agreement (and subject to the
limitations on such waiver set forth therein),". Section 8.19 of the Credit
Agreement is further amended by inserting after the last sentence thereof the
following: "The Borrower shall promptly provide the Agent with a copy of any
amendment to or modification of the Xxxxxx Documents."
4. AMENDMENT TO SECTION 14.1(D). The reference to the ", the
Intercreditor Amendment" in Section 14.1(d) of the Credit Agreement is hereby
deleted.
5. INTERCREDITOR AGREEMENT; CONSENT TO LOAN MODIFICATIONS. Each
of the Banks hereby authorizes the Agent to execute, deliver and perform the
Intercreditor Agreement (the form of which is attached hereto as EXHIBIT A) in
its capacity as Agent for the Banks. Each of the Banks consents to the releases
of the Collateral by the Agent provided for in the Intercreditor Agreement. Each
of the Banks hereby consents to (a) the amendments to and the amendments and
restatements of the Textron Documents in the forms attached hereto as EXHIBIT B
and (b) the amendments to the Xxxxxx Documents in the forms attached hereto as
EXHIBIT C.
6. XXXXXX RECEIVABLES COLLATERAL. Immediately upon repayment of
the Xxxxxx Facility, if any Obligation of the Borrower in respect of the Tranche
B Loans remains outstanding on such date, the Borrower hereby covenants and
agrees that the Borrower will grant to the Agent, for the benefit of the
Lenders, a first priority security interest in all of the Notes Receivable and
the Mortgages (each such term as defined in the Xxxxxx Documents) pledged to
Xxxxxx to secure to the Xxxxxx Facility immediately prior to the repayment in
full of such Xxxxxx Facility (the "XXXXXX RECEIVABLES COLLATERAL"). The Borrower
hereby covenants and agrees that, prior to repayment in full of the Xxxxxx
Facility, the Borrower will not, and will not permit any of its Subsidiaries to,
create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon the Xxxxxx Receivables Collateral, other than in favor of Xxxxxx
pursuant to the Xxxxxx Documents. The Agent and the Banks hereby acknowledge
that the Borrower has agreed to grant an identical and equal priority lien on
the Xxxxxx Receivables Collateral to Textron. The Agent and the Banks hereby
acknowledge and agree that (a) until such time as the Xxxxxx Facility has been
repaid in full, the Agent and the Banks have no title or interest in the Xxxxxx
Receivables Collateral and (b)
2
Xxxxxx has no duty or obligations to the Agent and the Banks with respect to the
Xxxxxx Receivables Collateral.
Notwithstanding the foregoing, in the event that in order to raise the
funds necessary to repay the Xxxxxx Facility, the Borrower intends to sell the
Xxxxxx Receivables Collateral into a securitization or to refinance the Xxxxxx
Facility and pledge the Xxxxxx Receivables Collateral to the lender providing
such refinancing, the Agent and the Banks hereby acknowledge and agree that the
Agent and the Banks shall have no claim with respect to such Notes Receivables
under this Section 6 to the extent such Notes Receivable are sold into such a
securization or pledged to a lender providing a new revolving credit facility
permitted by the terms of this Credit Agreement; provided however, that in the
event that the proceeds of the Xxxxxx Receivables Collateral received by the
Borrower from such sale or refinancing of the Xxxxxx Receivables Collateral
exceed the Borrower's outstanding obligations under the Xxxxxx Facility, then,
subject to the terms of the Intercreditor Agreement, the Borrower shall deliver
any such excess proceeds to the Agent and any such proceeds shall be applied:
first, to reduce the principal of the Tranche B Loans pro rata based upon the
respective Tranche A Commitment Percentages of the Banks and second, to reduce
the principal of the Tranche A Loans.
The Borrower hereby agrees to take, at its sole cost and expense, such
steps as the Agent may request to deliver the Xxxxxx Receivables Collateral to
the Agent and to create and perfect the Agent's first priority security interest
therein.
The Borrower and the Agent hereby acknowledge and agree that any
obligation of the Agent to act as agent for Xxxxxx with respect to any of the
Collateral under any of the Loan Documents is hereby discharged. Any failure of
the Borrower to comply with this Section 6 shall be an Event of Default under
the Credit Agreement.
7. CONDITIONS TO EFFECTIVENESS. This Amendment shall not become
effective until each of the following conditions precedent have been satisfied,
as determined by the Agent; provided, however, that the agreement of the Banks
set forth in Section 5 of this Agreement shall be effective immediately upon the
execution of this Amendment:
(a) the Agent shall have received this Amendment duly executed
and delivered by the Borrower, the Agent, and the Banks;
(b) the Intercreditor Agreement shall have been duly executed
and delivered by each of the parties thereto and all of the conditions
to the effectiveness of the Intercreditor Agreement shall have been
satisfied;
(c) Xxxxxx shall have duly executed and delivered amendments
to the Xxxxxx Documents in the forms attached hereto as EXHIBIT C;
(d) Textron shall have duly executed and delivered amendments
and amendments and restatements of the Textron Documents in forms
attached hereto as EXHIBIT B and all of the conditions to the
effectiveness of the Textron Amended and
3
Restated Inventory Loan Agreement (as defined in the Intercreditor
Agreement) shall have been satisfied;
(e) the Agent shall have received evidence, satisfactory to it
in its sole discretion, that Xxxxxx has released all of its liens on
the Existing Mortgaged Property; and
(f) the Borrower shall have reimbursed the Agent for, or paid
directly, all reasonable fees, costs, and expenses incurred by legal
counsel to the Agent and legal counsel to Liberty Bank for which the
Borrower has received an invoice.
If the conditions set forth in this Section 7 shall not have been
satisfied prior to March 31, 2004, Sections 2(b) and (c), 3, 4, and 6 of this
Amendment shall be null and void and of no force or effect.
7. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The Borrower
hereby represents and warrants to the Banks and the Agent as follows:
(a) Representations and Warranties in Credit Agreement.
Each of the representations and warranties of the Borrower contained in
the Credit Agreement or in any document or instrument delivered
pursuant to or in connection with the Credit Agreement (including,
without limitation, this Amendment) are true, correct and complete as
of the date hereof and no Default or Event of Default has occurred and
is continuing.
(b) Authority, No Conflicts, Etc. The execution, delivery
and performance of this Amendment (i) are within the corporate
authority of the Borrower, (ii) have been duly authorized by all
necessary corporate proceedings on behalf of the Borrower, (iii) do not
conflict with or result in any breach or contravention of any provision
of law, statute, rule, or regulation to which the Borrower is subject
or any judgment, order, writ, injunction, license, or permit applicable
to the Borrower, and (iv) do not conflict with any provision of the
corporate charter or bylaws of the Borrower or any agreement or other
instrument binding upon the Borrower. The execution, delivery, and
performance of this Amendment will result in a valid and legally
binding obligation of the Borrower enforceable against it in accordance
with the terms and provisions hereof.
(c) No Material Adverse Change; No Distributions. Except
as otherwise disclosed by the Borrower to the Banks in writing and
except for any adverse effects caused by the $28,711,000 increase in
the Borrower's loan loss reserve for the fiscal quarter ended March 31,
2003, and subject to the qualifications set forth in Section 6.6.2 of
the Credit Agreement, since December 31, 2002, there has occurred no
materially adverse change in the financial condition or business of the
Borrower and its Subsidiaries as shown on or reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at
December 31, 2002, or the consolidated statement of income as of such
date, other than changes in the ordinary course of business that
4
have not had any materially adverse effect either individually or in
the aggregate on the business or financial condition of the Borrower or
any of its Subsidiaries. Since September 30, 2001, the Borrower has not
made any Distribution.
(d) Litigation. Except as set forth Schedule 8(d) hereto,
there are no actions, suits, proceedings or investigations of any kind
pending or threatened against the Borrower or any of its Subsidiaries
before any court, tribunal or administrative agency or board that, if
adversely determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets, financial condition
or business of the Borrower or any of its Subsidiaries or materially
impair the right of the Borrower or any of its Subsidiaries, to carry
on business substantially as now conducted by them, or result in any
substantial liability not adequately covered by insurance, or for which
adequate reserves are not maintained on the consolidated balance sheet
of the Borrower, or which question the validity of the Credit Agreement
or any of the other Loan Documents, or any action taken or to be taken
pursuant hereto or thereto.
8. EFFECT OF AMENDMENT. Except as expressly set forth herein,
this Amendment does not constitute an amendment or waiver of any term or
condition of the Credit Agreement or any other Loan Document, and all such terms
and conditions shall remain in full force and effect and are hereby ratified and
confirmed in all respects. Nothing contained in this Amendment shall be
construed to imply a willingness on the part of the Agent or any Bank to grant
any similar or other future amendments of any of the provisions of the Credit
Agreement or the other Loan Documents. Nothing contained herein shall in any way
prejudice, impair or otherwise adversely affect any rights or remedies of the
Agent and the Banks under the Credit Agreement or any other Loan Document.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which taken together shall constitute one agreement.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon
and inure to the benefit of the successors and permitted assigns of the parties
hereto.
11. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts,
without regard to principles of conflicts of law.
12. RELEASE. In order to induce the Agent and the Banks to enter
into this Amendment, the Borrower acknowledges and agrees that: (I) the Borrower
has no claims or causes of action against either the Agent or any Bank (or any
of their respective directors, officers, employees or agents); (ii) the Borrower
has no offset right, counterclaim or defense of any kind against any of its
obligations, indebtedness or liabilities to either the Agent or any Bank; and
(iii) each of the Agent and the Banks has heretofore properly performed and
satisfied in a timely manner all of its obligations to the Borrower. The
Borrower wishes to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect either of the Agent's or any Bank's
5
rights, interests, contracts, collateral security or remedies. Therefore, the
Borrower unconditionally releases, waives and forever discharges (A) any and all
liabilities, obligations, duties, promises or indebtedness of any kind of the
Agent or any Bank to the Borrower, except the obligations to be performed by the
Agent or any Bank on or after the date hereof as expressly stated in the Credit
Agreement and the other Loan Documents, and (B) all claims, offsets, causes of
action, suits or defenses of any kind whatsoever (if any), whether arising at
law or in equity, whether known or unknown, which the Borrower might otherwise
have against the Agent, any Bank or any of their respective directors, officers,
employees or agents, in either case (A) or (B), on account of any past or
presently existing condition, act, omission, event, contract, liability,
obligation, indebtedness, claim, cause of action, defense, circumstance or
matter of any kind.
[Remainder of page intentionally left blank.]
6
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
an instrument under seal to be effective as of the date first above written.
BORROWER:
SILVERLEAF RESORTS, INC.
By: /s/ XXXXX X. XXXXX, XX.
-----------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Title: CFO
AGENT AND BANK:
SOVEREIGN BANK
By: /s/ XXXX XXXX
-----------------------------------
Name: Xxxx Xxxx
Title: Vice President
BANK:
LIBERTY BANK
By: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
List of Exhibits and Schedules:
Schedule 8(d) Litigation
Exhibit A Second Amended and Restated Intercreditor Agreement
Exhibit B Amendments to Textron Documents
Exhibit C Amendments to Xxxxxx Documents
7
