THIRD SUPPLEMENT TO INDENTURE
Ex
10.2
THIRD
SUPPLEMENT TO INDENTURE (this “Supplement”) dated as of February 12, 2010, by
and among SILVERLEAF FINANCE IV, LLC a Delaware limited liability company (the
“Issuer”), UBS
REAL ESTATE SECURITIES INC., a Delaware corporation, as noteholder (the “Noteholder”) and
XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as
trustee (the “Trustee”).
Reference
is made to the Indenture, dated as of March 2, 2006, by and among the Issuer,
the Noteholder, and the Trustee, pursuant to which the Silverleaf Finance IV,
LLC Variable Funding Note (the “Note”) was issued and the Issuer pledged certain
Collateral to the Trustee to secure the payment of the Note (as supplemented
hereby, the "Indenture"). Capitalized terms used in this Supplement
have the meanings given such terms in the Indenture, as supplemented hereby,
except as provided otherwise herein.
The
Issuer has requested that the Indenture be amended pursuant to Section 9.1(b)
thereof, as set forth below.
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1.
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Amendments.
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(a) The
second paragraph of Section 2.11 of the Indenture is hereby deleted in its
entirety and replaced with the following:
“On each
Business Day prior to the Facility Termination Date that is a Funding Date, and
upon the satisfaction of all conditions precedent to (a) the funding of an
Advance and (b) the purchase of Receivables and Other Conveyed Property, in each
case as set forth in Section 2.1(b) of the Sale and Servicing Agreement, and
Section 6.02 and Section 6.03 (and with respect to the first Advance after
February 12, 2010, Section 6.04) of the Note Purchase Agreement, the Issuer
shall be entitled to borrow additional funds pursuant to an Advance on such
Funding Date in an aggregate principal amount equal to the Advance Amount with
respect to such Funding Date. Each request by the Issuer for an Advance shall be
deemed to be a certification by the Issuer as to the satisfaction of the
conditions specified in the immediately preceding sentence.”
(b) Section
3.9 of the Indenture is hereby deleted in its entirety and replaced as
follows:
“Section
3.9 Quarterly Statement as to Compliance. So long as the
Note is Outstanding, the
Issuer will deliver to the Trustee and the Noteholder on or before February 28,
2010 and thereafter on or before the last day of each calendar quarter, an
Officer's Certificate, dated as of the last day of the immediately preceding
calendar quarter (or, in the case of the first such certificate, December 31,
2009), stating as to the Authorized Officer signing such Officer's Certificate
that:
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(i) using
their best efforts, a review of the activities of the Issuer during the
preceding calendar quarter (or, in the case of the first such certificate, the
preceding year) and of performance under this Indenture has been made under such
Authorized Officer's supervision; and
(ii) to
the best of such Authorized Officer's knowledge, based on such best efforts
review, the Issuer has complied with all conditions and covenants under this
Indenture throughout such calendar quarter (or, in the case of the first such
certificate, throughout such year) and no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, an Event of
Default, or, if there has been a default in the compliance of any such condition
or covenant, specifying each such default known to such Authorized Officer and
the nature and status thereof.”
(c) Article
III of the Indenture is hereby amended by inserting the following after Section
3.27 thereof:
“Section
3.28 Independent
Director The Issuer shall at all times have at least one
Independent Director (as defined in the Limited Liability Company
Agreement). Neither Silverleaf nor the Issuer shall remove any Person
serving as an Independent Director nor shall Silverleaf or the Issuer appoint
any Person to serve as an Independent Director except, in either case, in
accordance with the provisions of the Limited Liability Company Agreement and
with the prior written consent of the Noteholder, which may be granted or
withheld in its sole and absolute discretion.”
(d) Section
5.1(xv) of the Indenture is hereby deleted in its entirety and replaced with the
following:
“(xv) the
Three Month Rolling Average of Delinquency Ratios exceeds 9.0%;”
(e) Section
5.1(xviii) of the Indenture is hereby deleted in its entirety and replaced with
the following:
“(xviii) a
Three Month Rolling Average of Serviced Receivables Default Ratios Event shall
occur;”
2.
Conditions
Precedent. The Issuer hereby states that the following
conditions precedent to this Supplement have been fulfilled pursuant to Section
9.1(b) of the Indenture:
(a) Issuer Order.
An Issuer Order authorizing the Trustee to enter into this Supplement has been
duly executed by the Issuer and presented to the Trustee.
(b) Notice to the Rating
Agency. Prior written notice of this Supplement has been
provided to the Rating Agency.
3.
Effective
Date. Pursuant to Section 9.4 of the Indenture, upon execution
by the Issuer, the Noteholder and the Trustee, this Supplement shall become
effective and be a part of the Indenture for all purposes as though executed
with the Indenture and effective as of the date hereof.
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4.
Reaffirmation
and Ratification of Existing Agreements, Etc. The Issuer: (i)
reaffirms and ratifies all the obligations to the Trustee and the Noteholder, in
respect of the Indenture, as hereby amended, and the other Basic Documents, and
(ii) agrees that the Indenture, as amended hereby, and the other Basic Documents
shall remain in full force and effect, enforceable against the Issuer in
accordance with their terms.
5.
Miscellaneous.
(a) This
Supplement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
(b) This
Supplement shall be deemed to be a contract made under the laws of the State of
New York and shall for all purposes be governed by, and construed in accordance
with, the laws of the State of New York.
(c) The
headings of the several sections of this Supplement are for convenience only and
shall not affect the construction hereof.
(d) This
Supplement shall be deemed to be a Basic Document under the Indenture and the
other Basic Documents.
(e) The
Noteholder shall not, by any act, delay, omission or otherwise, whether prior
to, on, or after the date hereof, be deemed to have expressly or impliedly
waived any of its rights, powers and/or remedies unless such waiver shall be in
writing and signed by an authorized officer of the Noteholder. Any
such waiver shall be enforceable only to the extent specifically set forth
therein. A waiver by the Noteholder of any right, power and/or remedy
on any one occasion shall not be construed as a bar to or waiver of any such
right, power and/or remedy which the Noteholder would otherwise have on any
future occasion, whether similar in kind or otherwise.
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IN
WITNESS WHEREOF, this Supplement has been duly executed and delivered as of the
date first above written.
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SILVERLEAF
FINANCE IV, LLC
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By:
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S/ XXXXX X. XXXXX, XX.
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Title:
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Chief Financial Officer
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UBS
REAL ESTATE SECURITIES INC., as Noteholder
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By:
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/S/ XXXXX XXXXXXX
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Title:
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Executive Director
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By:
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/S/ XXXX XXXXXXXX
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Title:
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Executive Director
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION, in its capacity as
Trustee
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By:
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/S/ XXX XXXXXX
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Title:
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Vice
President
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