THIRD AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT
Ex.
10.1
THIRD AMENDMENT
TO
THIS
THIRD AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT (this “Amendment”)
is dated as of April 1, 2008 (the “Closing
Date”), by and between CAPITALSOURCE FINANCE LLC, a
Delaware limited liability company, as secured party (herein referred to as the
“Lender”) and SILVERLEAF RESORTS, INC., a
Texas corporation, as debtor (herein referred to as the “Borrower”).
RECITALS
A.
Borrower and Lender have entered into that certain Receivables Loan and Security
Agreement, dated as of April 29, 2005 (as amended and modified from time to
time, the “Loan
Agreement”).
B.
The Borrower and Lender desire to amend the Loan Agreement on the terms and
conditions as hereinafter set forth.
NOW,
THEREFORE, in consideration of the premises herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE
I
Definitions
1.01 Capitalized
terms used in this Amendment are defined in the Loan Agreement, as amended
hereby, unless otherwise stated.
ARTICLE
II
Amendments to Loan
Agreement
Effective
as of the date hereof, the Loan Agreement is hereby amended as
follows:
2.01
Amendment
to Section 1.57. Section 1.57 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“1.57 Loan. The
maximum $20,000,000 credit facility as described in this Agreement and evidenced
and secured by the Loan Documents.”
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2.02
Amendment
to Section 1.63. Section 1.63 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“1.63
Maturity
Date. June 30, 2008.”
2.03
Amendment
to Section 1.64. Section 1.64 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“1.64
Maximum Loan
Amount. The maximum principal balance of the Loan which can be
outstanding at any time is Twenty Million Dollars ($20,000,000).”
2.04
Amendment
to Section 1.89. The definition of “Sovereign Facility” in
Section 1.89 of
the Loan Agreement is hereby deleted in its entirety.
2.05
Amendment
to Section 1. Section 1 of the Loan
Agreement is hereby amended to add the definition of “Material Adverse Change”
in correct alphabetical order as set forth below.
“Material Adverse
Change. Any development, event, condition, obligation,
liability or circumstance or set of events, conditions, obligations, liabilities
or circumstances or any change(s) which: (i) has had, or reasonably
could be expected to have (as determined by Lender), a material adverse effect
upon or change in (a) the legality, validity or enforceability of any Loan
Document, or (b) the validity, perfection or priority of any Lien granted to
Lender under this Agreement or any other Loan Document; (ii) has been, or
reasonably could be expected to be (as determined by Lender), material and
adverse to the value of any of the Collateral or to the business, operations,
prospects, properties, assets, liabilities or condition (financial or otherwise)
of the Borrower (including, without limitation, the termination of any
applicable timeshare, condominium or similar regime whether by consent of the
Timeshare Interest owners or otherwise, any modification or amendment to any
Declaration that shall, in the reasonable opinion of Lender, adversely affect
the Collateral, Timeshare Interest, any Receivables Loan Approved Resort or the
operations or prospects of any Receivables Loan Approved Resort, or the
substantial destruction of any Receivables Loan Approved Resort, if not fully
insured); or (iii) has materially impaired, or reasonably could be expected to
materially impair (as determined by Lender), the ability of the Borrower to
perform any of the Obligations, or to consummate the transactions, under the
Loan Documents.”
2.06
Amendment
to Section 4.1(h). Section 4.1(h) of the
Loan Agreement is hereby deleted and replaced with “Intentionally
Omitted”.
2.07
Amendment
to Section 4.2(c)(iv). Section 4.2(c)(iv) of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
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“(iv)
With respect to any Advance in connection with Pledged Notes Receivable
generated at Oak N’ Spruce Resort, delivered to Lender an Assignment of
Certificate of Beneficial Interest securing such Pledged Note Receivable
acceptable to Lender in its sole discretion and evidence satisfactory to Lender
that Borrower has filed a UCC-1 financing statement in the state where the
Purchaser is located naming Borrower as the secured party and Lender as
Borrower’s assignee (and within sixty (60) calendar days from the date of such
Advance, a recorded copy of such UCC-1 financing statement and
assignment).”
2.08
Amendment
to Section 5.12. Section 5.12 of the
Loan Agreement is hereby amended to delete therefrom the phrase “(other than the
agreements executed in connection with the Sovereign Facility).”
2.09
Amendment
to Section 6.1(s). Section 6.1(s) of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“(s)
Textron
Facility. Borrower will comply with each of the terms and
conditions of any subordinated indebtedness, the Textron Facility and will
promptly deliver to Lender, upon receipt by Borrower, copies of any notices
received by Borrower in connection with the Textron Facility or any other credit
facility from time to time subject to the Interecreditor
Agreement.”
2.10
Amendment
to Section 6.1. Section 6.1 of the
Loan Agreement is hereby amended to add the following clause (ee) to the
end thereto as follows:
“(ee)
Title
Insurance. Borrower shall deliver or cause to be delivered to
Lender a mortgagee’s title insurance commitment within sixty (60) days after the
date of each Advance covering Timeshare Interest Mortgages which are included as
part of such Advance (other than Timeshare Interest Mortgages covering Timeshare
Interests in Oak N’ Spruce Resort), underwritten by a company acceptable to
Lender in all respects, to insure the lien of each Timeshare Interest pledged to
Lender in an amount not less than the applicable Pledged Notes Receivable
balance and containing such affirmative coverage as Lender deems reasonably
necessary. A mortgagee title insurance policy consistent with the
subject title insurance commitment and naming Borrower, its successors and
assigns as insured mortgagee shall be delivered with respect to the Timeshare
Interest Mortgages which make up each Advance (other than Timeshare Interest
Mortgages covering Timeshare Interests in Oak N’ Spruce Resort) within sixty
(60) days from the issuance of the related title commitment in respect to a
Receivables Loan Approved Resort located within the State of Texas and within
ninety (90) days from the issuance of the related title commitment in respect to
a Receivables Loan Approved Resort located in a state other than the State of
Texas and must insure that the applicable Timeshare Interest Mortgage creates a
first priority lien in and to the financed Timeshare Interest in favor or
Lender, as assignee of Borrower, with such exceptions and conditions to title as
Lender shall approve in writing. Notwithstanding the foregoing, Agent
reserves the right in its sole discretion to require at any time as a condition
to any Advance that Borrower deliver or cause to be delivered to Lender a
mortgagee’s title insurance commitment at the time of such Advance covering
Timeshare Interest Mortgages which are included as part of such Advance (other
than Timeshare Interest Mortgages covering Timeshare Interests in Oak N’ Spruce
Resort), underwritten by a company acceptable to Lender in all respects, to
insure the lien of each Timeshare Interest pledged to Lender in an amount not
less than the applicable Pledged Notes Receivable balance and containing such
affirmative coverage as Lender deems reasonably necessary. If Agent
requires such delivery as a condition to an Advance, a mortgagee title insurance
policy consistent with the subject title insurance commitment and naming
Borrower, its successors and assigns as insured mortgagee shall be delivered
with respect to the Timeshare Interest Mortgages which make up each Advance
(other than Timeshare Interest Mortgages covering Timeshare Interests in Oak N’
Spruce Resort) within sixty (60) days of the date of the Advance on such Pledged
Notes Receivable and must insure that the applicable Timeshare Interest Mortgage
creates a first priority lien in and to the financed Timeshare Interest in favor
or Lender, as assignee of Borrower, with such exceptions and conditions to title
as Lender shall approve in writing ”
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2.11
Amendment
to Section 6.2(m). Section 6.2(m) of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“(m) Maximum Sales
Costs. As of the last day of each calendar quarter, commencing
with the calendar quarter ending June 30, 2005, Borrower will not permit the
four quarter cumulative ratio of Marketing and Sales Costs to the Borrower’s net
proceeds from the sale of Timeshare Interests as recorded on the Borrower’s
financial statements for the immediately preceding four (4) consecutive fiscal
quarters of the Borrower to equal or exceed a ratio of .600 to
1. Notwithstanding the foregoing, in the event that Borrower delivers
written evidence satisfactory to Lender that the above-referenced ratio is no
longer required to be tested under the Textron Facility, such ratio shall not be
tested under this Agreement.”
2.12
Amendment
to Section 7.13. Section 7.13 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“7.13 Material Adverse
Change. If
there occurs any Material Adverse Change.”
2.13
Amendment
to Section 7.14. Section 7.14 of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
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“7.14 Default by Borrower in Other
Agreements
. Any
default by Borrower (a) in the payment of any indebtedness to Lender; (b) in the
payment or performance of other indebtedness for borrowed money or obligations
in excess of $100,000 secured by all or any portion of the Collateral; or (c) in
the payment or performance of any other material indebtedness or obligations
(including any indebtedness owed pursuant to the Textron Facility, the Bond
Holder-Exchange Transaction or any other indebtedness from time to time subject
to the Intercreditor Agreement).”
2.14
Amendment
to Section 11. Section 11 of the
Loan Agreement is hereby amended to add the following Section 11.26 thereto
in its entirety as follows:
“11.26 Appointment of
Servicer.
(a) Lender
may from time to time, at no cost or expense to Borrower, enter into a servicing
agreement (a “Loan
Servicing Agreement”) with CapitalSource or an Affiliate of Lender or
CapitalSource (a “Loan
Servicer”) to service and enforce the Loan Documents and collect the
Obligations on Lender’s behalf. Pursuant to the Loan Servicing
Agreement, Lender may authorize the Loan Servicer to take certain actions,
perform certain duties and exercise certain powers on Lender’s behalf under the
provisions of the Loan Documents and any other instruments and agreements
referred to in this Agreement, all of to which Borrower hereby
consent.
(b) The
Loan Servicer shall have no duties or responsibilities to Borrower, but only to
Lender and then only as expressly set forth in the Loan Servicing
Agreement. Without limiting the generality of the foregoing, the Loan
Servicer shall have no obligation to make any loans or advances to
Borrower. Neither the Loan Servicer nor any of its officers,
directors, employees or agents shall be liable for any action taken or omitted
by them under this Agreement or in connection herewith, unless caused by its or
their willful misconduct. The Loan Servicer’s duties shall be
mechanical and administrative in nature; nothing in this Agreement, express or
implied, is intended to or shall be so construed as to impose upon the Loan
Servicer any rights or obligations with respect to the Loan Documents except as
expressly set forth herein. Neither Borrower nor any Guarantor shall
in any way be construed to be a third party beneficiary of any relationship
between the Loan Servicer and Lender.
(c) The
Loan Servicer shall be entitled to rely, and shall be fully protected in
relying, upon any communication whether written or oral believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person,
and, with respect to all legal matters pertaining to this Agreement and its
duties hereunder, upon advice of counsel selected by it.
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(d) Borrower
shall be entitled to rely upon any communication whether written or oral sent or
made by the Loan Servicer for and on behalf of Lender with respect to all
matters pertaining to the Loan Documents and Borrower’ duties and obligations
hereunder, unless and until Borrower receive written notice from Lender that the
Loan Servicer is no longer servicing the Loan.
(e) The
Loan Servicing Agreement may be terminated at any time without prior notice to
or consent of Borrower, and Lender will notify Borrower within a reasonable
period of time thereafter of such termination. Upon termination of
the Loan Servicing Agreement and failure to replace the Loan Servicing Agreement
with a new servicing agreement, all references herein to the Loan Servicer shall
thereafter mean and refer to Lender.”
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
and Borrower shall have entered into an amendment and restatement of the
Inventory Loan Agreement in form and substance satisfactory to
Lender.
(c) Lender
shall have received a commitment and extension fee equal to
$10,000.00.
(d) 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.
(e) The
representations and warranties contained herein and in the Loan Agreement, as
amended hereby, and the Loan Documents, shall be true and correct as of the date
hereof, as if made on the date hereof.
(f) 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.
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(g) All
corporate and other proceedings, and 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.
ARTICLE
IV
No
Waiver
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 the 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 terms 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.
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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; (b) the representations and
warranties contained in the Loan Agreement, as amended hereby, and any Loan
Document are true 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 right 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 terms 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, and
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 held 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.
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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 IRRESPECTIVE 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 RATE 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]
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IN WITNESS WHEREOF, this
Amendment has been duly executed on the date first written above.
LENDER:
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Dates
of Execution:
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CAPITALSOURCE
FINANCE LLC,
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a
Delaware limited liability company
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April
1, 2008
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By:
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/S/ XXXXXXX X. XXXXXX
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Name:
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Xxxxxxx X. Xxxxxx
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Title:
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Senior
Counsel
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BORROWER:
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SILVERLEAF
RESORTS, INC.,
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a
Texas corporation
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April
1, 2008
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By:
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/S/ XXX X. XXXXXXX
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Name:
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Xxx X. Xxxxxxx
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Title:
|
Chief Financial
Officer
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