FIRST AMENDMENT TO RECEIVABLES LOAN AND SECURITY AGREEMENT
FIRST
AMENDMENT TO
THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”)
is
dated as of April 28, 2006 (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 1.35. Section
1.35(n)
of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“(n) The
maximum outstanding principal balance of any Pledged Note Receivable hereunder
does not exceed $50,000 and the maximum aggregate exposure by any one obligor
shall not exceed two (2) Pledged Notes Receivable, without the prior written
consent of Lender; provided,
however,
with
respect to up to ten percent (10%) of the unpaid principal balance of all
Pledged Notes Receivable, the maximum outstanding principal balance of any
Pledged Note Receivable may exceed $50,000 so long as (i) the maximum
outstanding principal balance of any such Pledged Note Receivable does not
exceed $150,000 and (ii) the maximum aggregate exposure by any one obligor
shall
not exceed $250,000;”
2.02 Amendment
to Section 1.50.
Section 1.50
of the
Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“1.50
Interest
Rate. On
any
date, for all Advances and Obligations, unless otherwise set forth in this
Agreement, the fluctuating rate of interest per annum equal to the sum of the
Prime Rate in effect on such day plus three-quarters of one percent (0.75%)
per
annum. The Interest Rate shall be calculated based on a three hundred sixty
(360) day year and charged for the actual number of days elapsed.
2.03 Amendment
to Section 1.
Section
1 of the Loan Agreement is hereby amended to add the definition of “Prime Rate”
in correct alphabetical order as set forth below.
“Prime
Rate.
The
rate announced from time to time as the “prime rate” by Citibank, N.A., New
York, New York; provided,
that
should Lender be unable to determine such rate, such other indication of the
prevailing prime rate of interest as Lender shall reasonably
select.”
2.04 Amendment
to Section 1.55.
Section
1.55 of the Loan Agreement is hereby deleted in its entirety.
2.05 Amendment
to Section 2.3.
Section
2.3 of the Loan Agreement is hereby amended to delete the term “LIBOR Rate” and
replace it with the term “Prime Rate” in each instance that is it used
therein.
2.06 Amendment
to Section 2.7.
Section
2.7 of the Loan Agreement is hereby amended to delete the phrase “or as the
consequence of the breaking of any LIBOR contract” found therein.
2.07 Amendment
to Section 2.8.
Section
2.8 of the Loan Agreement is hereby amended to delete the term “LIBOR Rate”
found therein and replace it with the term “Prime Rate”.
2.08 Amendment
to Section 2.9.
Section
2.9 of the Loan Agreement is hereby amended to delete clauses
(a)
and
(b)
found
therein.
2.09 Amendment
to Section 2 Section
2
of the Loan Agreement is hereby amended by adding Section 2.11 thereto to read
as follows:
“2.11 Non-Recourse.
Subject
to the qualifications below, Lender shall not enforce the liability and
obligation of Borrower to perform and observe the obligations contained in
this
Agreement or any of the other Loan Documents by any action or proceeding wherein
a money judgment shall be sought against Borrower, except that Lender may bring
a foreclosure action, an action for specific performance or any other
appropriate action or proceeding to enable Lender to enforce and realize upon
its interest under this Agreement and the other Loan Documents, or in any
Collateral or any other collateral provided to Lender pursuant to the Loan
Documents; provided,
however,
that,
except as otherwise specifically provided in this Agreement, any judgment in
any
such action or proceeding shall be enforceable against Borrower only to the
extent of Borrower’s interest in any Collateral, and in any other collateral
given to Lender, and Lender, by accepting this Agreement and the other Loan
Documents, shall not xxx for, seek or demand any deficiency judgment against
Borrower in any such action or proceeding under or by reason of or under or
in
connection with this Agreement or the other Loan Documents. The provisions
of
this Section shall not, however, (A) constitute a waiver, release or impairment
of any obligation evidenced or secured by any of the Loan Documents; (B) impair
the right of Lender to name Borrower as a party defendant in any action or
suit
for foreclosure and sale under any Loan Document; (C) affect the validity or
enforceability of any guaranty made in connection with the Loan or any of the
rights and remedies of Lender thereunder; (D) impair the right of Lender to
obtain the appointment of a receiver; (E) constitute a prohibition against
Lender to seek a deficiency judgment against Borrower in order to fully realize
the security granted by any Loan Document or to commence any other appropriate
action or proceeding in order for Lender to exercise its remedies against any
Collateral; or (F) constitute a waiver of the right of Lender to enforce the
liability and obligation of Borrower, by money judgment or otherwise, to the
extent of any loss, damage, cost, expense, liability, claim or other obligation
incurred by Lender (including attorneys’ fees and costs reasonably incurred)
arising out of or in connection with (and Borrower shall be personally liable
for) the following:
(A) Borrower’s
commission of a criminal act;
(B) the
removal or disposal of any personal property from any Collateral in violation
of
the terms of any of the Loan Documents unless replaced by personal property
of
reasonably equivalent value;
(C) any
matters arising under Section
9.3
of this
Agreement;
(D) the
misapplication by Borrower of any funds derived from any Collateral, including
security deposits, insurance proceeds and condemnation awards;
(E) the
fraud
or willful or intentional misrepresentation by Borrower made in or in connection
with the Loan Documents, or the Loan or any Collateral;
(F) Borrower’s
collection of rents more than one month in advance or entering into or modifying
written leases, or receipt of monies by Borrower in connection with the
modification of any written leases, in violation of this Agreement or any of
the
other Loan Documents;
(G) Borrower’s
failure to apply proceeds of rents or any other payments in respect of the
leases and other income of any Collateral or any other collateral to the costs
of maintenance and operation of any Collateral and to the payment of taxes,
lien
claims, insurance premiums, debt service and other amounts due under the Loan
Documents or failure to deliver to Lender rents or security deposits upon
request after the occurrence of an Event of Default;
(H) Any
Change in Management occurs;
(I) Borrower’s
failure to maintain insurance as required by this Agreement or to pay any taxes
or assessments affecting any Collateral;
(J) any
damage, destruction or waste to any Collateral or other collateral securing
the
Loan caused by the acts or omissions of Borrower, its Lenders, administrators,
managers, members or employees; or
(K) Borrower’s
failure to pay for any loss, liability or expense (including reasonable
attorneys’ fees) incurred by Lender arising out of any claim or allegation made
by Borrower, its successors or assigns, or any creditor of Borrower, that this
Agreement or the transactions contemplated by the Loan Documents establish
a
joint venture, partnership or other similar arrangement between Borrower and
Lender.
The
foregoing limitation of liability contained above is personal to the original
Borrower named herein and may not be assigned or transferred in any manner.
Accordingly, the successors and assigns of the original Borrower named herein
shall not receive the benefit of the foregoing limitation of liability, and
the
Loan shall be full recourse to that successor or assign.
Notwithstanding
anything to the contrary in this Agreement or any of the other Loan Documents,
(A) Lender shall not be deemed to have waived any right which Lender may have
under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy
Code, and any comparable foreign laws relating to bankruptcy, insolvency or
creditors’ rights to file a claim for the full amount of the Loan or to require
that all collateral shall continue to secure all of the Loan owing to Lender
in
accordance with the Loan Documents, and (B) the Loan shall be fully recourse
to
Borrower in the event that:
(A) Borrower
files a voluntary petition under the Bankruptcy Code or any other federal or
state bankruptcy or insolvency law;
(B) Any
Change in Management occurs without the prior written consent of Lender (which
consent shall be in Lender’s sole discretion);
(C) an
officer, director, representative or Person which owns or controls, directly
or
indirectly, Borrower, or an affiliate of any of the foregoing, files, or joins
in the filing of, an involuntary petition against Borrower under the Bankruptcy
Code or any other federal or state bankruptcy or insolvency law, or solicits
or
causes to be solicited petitioning creditors for any involuntary petition
against Borrower from any Person;
(D) Borrower
files an answer consenting to or otherwise acquiescing in or joining in any
involuntary petition filed against it, by any other Person under the Bankruptcy
Code or any other federal or state bankruptcy or insolvency law, or solicits
or
causes to be solicited petitioning creditors for any involuntary petition from
any Person;
(E) in
any
case or proceeding under the Bankruptcy Code or in any other judicial
proceeding, all or any portion of the lien of Lender or the obligations of
Borrower to pay principal and interest as specified in the Loan Documents is
rescinded, set aside, or determined to be void or unenforceable, or any of
the
terms of any of the Loan Documents is modified without Lender’s
consent;
(F) fraud,
misappropriation of funds or theft is committed by Borrower or any affiliate
of
Borrower in connection with the Loan or any Collateral;
(G) an
intentional misrepresentation is made by Borrower or any affiliate of Borrower
in connection with the Loan or the obtaining of the Loan; or
(H) Borrower
or any of its affiliates asserts any claim, defense, or offset against Lender
that Borrower has waived or agreed not to assert.
None
of
the foregoing limitations on the personal liability of Borrower shall modify,
diminish or discharge the personal liability of any Guarantor under any
Guaranty.”
2.10 Amendment
to Section 11.
Section
11
of the
Loan Agreement is hereby amended to add the following Section
11.24
thereto
in its entirety as follows:
“11.24 Treatment
of Fees.
The
parties hereto agree that all fees due and payable by the Borrower under this
Agreement, including, without limitation, pursuant to Sections
2.4
and
2.5
hereof,
shall be deemed to be and shall be treated as interest in respect of the
outstanding principal amount of the Loan; provided,
however,
that
nothing in this Section
11.24
shall in
any way modify or reduce the obligations of the Borrower under Section
2.3 of
this
Agreement.”
2.11 Amendment
to Section 11.
Section
11 of the Loan Agreement is hereby amended to add the following Section
11.25
thereto
in its entirety as follows:
“11.25 Agency
If
any of
the Obligations are held at any time by any party other than CapitalSource
Finance LLC, then each Lender and its successors and assigns hereby (i)
designates and appoints CapitalSource Finance LLC, a Delaware limited liability
company, and its successors and assigns (“CapitalSource”),
to
act as agent and servicer for Lender and its successors and assigns under this
Agreement and all other Loan Documents, (ii) irrevocably authorizes
CapitalSource to take all actions on its behalf under the provisions of this
Loan Agreement and all other Loan Documents, (iii) irrevocably authorizes
CapitalSource to exercise all such powers and rights, and to perform all such
duties and obligations hereunder and thereunder, (iv) irrevocably agrees not
to
take any such action or exercise any such powers or rights individually or
otherwise other than through CapitalSource in its capacity as agent hereunder
and (v) agrees that any right to control or replace CapitalSource in its
capacity as such agent shall be exercised by at least a majority in interest
of
the holders of the Obligations. CapitalSource, on behalf of and for the pro
rata
benefit of each of the holders of the Obligations, shall hold all Collateral
and
receive all payments of principal and interest, fees, charges and collections
received pursuant to this Agreement and all other Loan Documents. Borrower
acknowledges that each Lender and its successors and assigns transfers and
assigns to CapitalSource the sole and exclusive right to act as Lender's agent,
to hold, possess and/or prefect security interests in all Collateral, enforce
all rights, receive all payments and perform all obligations of each Lender
contained herein and in all of the other Loan Documents. Borrower shall within
ten (10) Business Days after CapitalSource’s reasonable request, take such
further actions, obtain such consents and approvals and duly execute and deliver
such further agreements, amendments, assignments, instructions or documents
as
CapitalSource may request to further evidence the appointment and designation
of
CapitalSource as agent for each Lender and any other holders of the
Obligations.”
ARTICLE
III
Conditions Precedent
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 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.
(d) 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.
(e) 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.
(f) 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.
(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
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.
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.
First
Amendment to Receivables Loan and Security Agreement
9
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.
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.
First
Amendment to Receivables Loan and Security Agreement
10
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]
First
Amendment to Receivables Loan and Security Agreement
11
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/ XXXXX X. XXXXXX | |
| Name: |
Xxxxx X. Xxxxxx |
|
| Title: | General Counsel | |
| BORROWER: | ||
| SILVERLEAF
RESORTS, INC., a Texas corporation |
||
| |
|
|
| By: | /S/ XXXXX X. XXXXX, XX. | |
| Name: |
Xxxxx X. Xxxxx, Xx. |
|
| Title: | CFO | |
First
Amendment to Receivables Loan and Security Agreement
