Ex. 10.47
FOURTH AMENDMENT TO AMENDED AND RESTATED
RECEIVABLES LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED RECEIVABLES LOAN AND
SECURITY AGREEMENT ("FOURTH AMENDMENT") dated March 5, 2004 (the "EFFECTIVE
DATE"), is made by and between SILVERLEAF RESORTS, INC., a Texas corporation
f/k/a SILVERLEAF VACATION CLUB, INC., f/k/a ASCENSION CAPITAL CORPORATION,
successor by merger to ASCENSION RESORTS, LTD. d/b/a SILVERLEAF RESORTS, LTD., a
Texas limited partnership ("BORROWER"), whose address is 0000 Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, and Xxxxxx Financial, Inc., a Delaware corporation
("AGENT" and "LENDER"), as a Lender and as Agent for all Lenders and such
financial institutions as are or hereafter become parties to this Loan Agreement
as Lenders, whose address is 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
RECITALS:
A. Borrower and Lender entered into that certain Loan and
Security Agreement dated as of October 11, 1994 (the "ORIGINAL RECEIVABLES LOAN
AGREEMENT"), which Original Receivables Loan Agreement was modified by (i) that
certain Loan Modification Agreement between the Borrower and Lender dated Xxxxx
00, 0000, (xx) that certain Amendment to Loan and Security Agreement between
Borrower and Lender dated December 6, 1996, (iii) that certain Amended and
Restated Loan and Security Agreement between the Borrower and Lender dated
December 27, 1995, (iv) that certain Amendment to Amended and Restated Loan and
Security Agreement between Borrower and Lender dated February 28, 1996, (v) that
certain Amendment to Amended and Restated Loan and Security Agreement between
Borrower and Lender dated August 15, 1996, and (vi) that certain letter
agreement between the Borrower and Lender dated March 31, 1997 (the "LETTER
AGREEMENt") (the Original Receivables Loan, the Letter Agreement and all
amendments and modifications thereto are collectively referred to as the
"ORIGINAL RECEIVABLES LOAN"); and
B. The Original Receivables Loan as amended was modified pursuant
to that certain Amended and Restated Receivables Loan and Security Agreement by
and among Borrower, Agent and Lender dated September 1, 1999 (the "RECEIVABLES
LOAN AGREEMENT"), as further modified pursuant to that certain First Amendment
and Restated Receivables Loan and Security Agreement (the "FIRST AMENDMENT TO
RECEIVABLES LOAN") dated March 20, 2000, as further modified by that certain
Second Amendment to Amended and Restated Receivables Loan and Security Agreement
(the "SECOND AMENDMENT TO RECEIVABLES LOAN") dated April 30, 2002, and as
subsequently amended by that certain Third Amendment to Amended and Restated
Receivables Loan and Security Agreement (the "THIRD AMENDMENT TO RECEIVABLES
LOAN") dated November 21, 2003 (the "RECEIVABLES LOAN") (the Original
Receivables Loan and the Receivables Loan; and all amendments and modifications
thereto are collectively referred to as the "LOAN AGREEMENT"); and
C. Agent on behalf of Lenders, Sovereign and Textron are entering
into that certain Second Amended and Restated Intercreditor Agreement dated of
even date herewith (the "SECOND INTERCREDITOR AGREEMENT"); and
D. Borrower and Agent are entering into the Sixth Amendment to
Second Amended and Restated Inventory Loan and Security Agreement and
Modification of Notes dated of even date herewith ("SIXTH AMENDMENT TO SECOND
AMENDED AND RESTATED INVENTORY LOAN AGREEMENT AND MODIFICATION OF NOTES"); and
E. The parties desire to further amend the terms of the Loan
Agreement, as amended, as set forth herein.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties agree as follows:
1. Recitals. The above recitals are true and correct and are
incorporated herein.
2. Incorporation. The Exhibits and Schedules attached hereto are
incorporated herein and made a part hereof.
3. Definitions All capitalized terms not defined herein shall
have the meanings ascribed to them in the Loan Agreement.
4. Loans; Modification Fee.
(a) Borrower acknowledges, agrees and confirms that as of
the date hereof and after giving effect to the payments required in connection
herewith, the outstanding principal balances of the Supplemental Loan, and the
Receivables Loan are, respectively, $8,343,084.78 and $15,686,297.31.
(b) In exchange for Lender's agreements under this Fourth
Amendment, Borrower agrees to pay to Lender a modification fee ("MODIFICATION
FEE") in the amount of Fifty Thousand Dollars ($50,000.00). Such Modification
Fee shall be paid on or before the Effective Date by wire transfer pursuant to
transfer instructions provided by Lender. The Union Bank of California, N.A.
shall be entitled to receive Sixteen Thousand Six Hundred Sixty Six and 67/100
Dollars ($16,666.67) of the Modification Fee.
5. Definition of Maturity Date. The definition of Maturity Date
set forth in the Appendix of the Receivables Loan Agreement is hereby amended
and restated as follows:
MATURITY DATE. February 28, 2006.
6. Definition of Maximum Exposure. The definition of Maximum
Exposure set forth in Appendix 1 to the Second Amendment to Receivables Loan is
hereby amended and restated as follows:
MAXIMUM EXPOSURE. Subject at all times to a limit in the
aggregate amount of the Loan Commitments of all participating
Lenders, equal to eighty percent (80%) of the outstanding
principal balance of all Eligible Notes Receivable pledged to
Agent for the benefit of Lenders hereunder, subject to one
half percent (0.5%) reductions per month commencing April 1,
2004.
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7. Term. Section 1.2 of the Receivables Loan Agreement is hereby
amended and restated as follows:
TERM. The Loan shall be due and payable on or before February
28, 2006 or the first business day thereafter.
8. Release of Lender's Security Interest in Additional
Collateral. Lender hereby releases any and all security interest that Lender may
have in the Additional Collateral, the Ineligible Note Portfolio, the Additional
Resort Collateral, the Second Priority Collateral, the Eligible Unsold Timeshare
Intervals, the Real Estate Collateral and any other Shared Collateral which has
not been pledged to Lender as the Primary Lender. Lender shall retain its lien
with respect to the Collateral encumbered pursuant to Section 2.1 of the
Receivables Loan Agreement.
9. Profitable Operations. The Profitable Operations financial
covenant set forth in Section 10(e) of the Second Amendment to Receivables Loan
is hereby amended and restated as follows:
Borrower will not permit Consolidated Net Income to be less than $1.00
for (A) any fiscal year, commencing with the fiscal year ending
December 31, 2002, and (B) any two consecutive fiscal quarters (which
quarters shall be measured on an individual rather than a cumulative
basis). Notwithstanding anything stated to the contrary herein, the
Allowance Increase (as defined in the Fifth Amendment to Supplemental
Loan) shall not be taken into consideration in performing the
calculation of Consolidated Net Income; provided, however, the
Allowance Increase shall apply only to the Allowance Increase that
occurred during the quarter ending on March 31, 2003. Any further
increases to the allowance for uncollectible notes shall be included
for purposes of calculating Consolidated Net Income.
10. Limitation on Other Debt; Modifications to Other Debt
Instruments; Business Operations. Section 21(a) of the Second Amendment to
Receivables Loan restricting the Borrower's ability to obtain additional
financing, Section 21(b) of the Second Amendment to Receivables Loan requiring
Lender's consent to any modification to the Textron Documents, DZ Documents,
Bond Holder Exchange Documents, Sovereign Documents and Other Debt Instruments
and Section 21(c) of the Second Amendment to Receivables Loan requiring the
Borrower to substantially comply with the Business Plan are each hereby deleted
and the word Omitted is substituted therefor.
11. Consent to Senior Subordinated Note Exchange. Borrower has
requested Lender's consent to Borrower's exchange of up to $28,467,000 (but not
less than $18,978,000) of 6% senior subordinated notes due in 2007 for an equal
amount of 8% senior subordinated notes due in 2010 (the "SENIOR SUBORDINATED
NOTE EXCHANGE"). Lender hereby consents to the Senior Subordinated Note
Exchange.
The consent set forth in this paragraph 11 shall not be effective until
each of Textron and Sovereign provide written consent to the Senior Subordinated
Note Exchange.
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12. Second Intercreditor Agreement. This Fourth Amendment is
conditioned upon the execution of the Second Intercreditor Agreement in the form
attached hereto as EXHIBIT A by Lender, Sovereign and Textron. Failure by either
Textron or Sovereign to enter into the Second Intercreditor Agreement shall
render this Fourth Amendment null and void.
13. Conditions Precedent; Closing.
(a) Approval of Documents Prior to Closing Date. Borrower
has delivered to Lender (with copies to Lender's counsel), prior to the Closing
Date, and Lender has reviewed and approved in its sole discretion, prior to the
Closing Date, the form and content of all of the items specified in Subsections
(i) through (iv) below (the "SUBMISSIONS").
Lender shall have the right to review and approve any changes
to the form of any of the Submissions. If Lender disapproves of any changes to
any of the Submissions, Lender shall have the right to require Borrower either
to cure or correct the defect objected to by Lender. Under no circumstances
shall Lender's failure to approve or disapprove a change to any of the
Submissions be deemed to be an approval of such Submissions. All of the
Submissions were and shall be prepared at Borrower's sole cost and expense.
Borrower acknowledges that Lender will not enter into this Fourth Amendment
unless all of the following conditions precedent are satisfied by the Closing
Date.
(i) A certificate in the form attached as
EXHIBIT B to be dated as of the Closing Date and signed by the president, vice
president, or secretary of Borrower;
(ii) Copies of any amendments to the articles of
incorporation/charter and bylaws of Borrower not previously delivered to Lender,
certified to be true, correct and complete by Borrower and the Secretary of
State of the State of Texas and current certificates of good standing for
Borrower for the State of Texas and states where the Resorts are located, a
current certificate of authority to conduct business by the Secretary of State
in each state in which Borrower conducts business;
(iii) A certificate of the Secretary of Borrower
certifying the adoption by the Board of Directors of Borrower of a resolution
authorizing Borrower to enter into and execute this Fourth Amendment and all
such documents requested by Lender in the form attached hereto as EXHIBIT C; and
(iv) A certificate of the secretary or assistant
secretary of Borrower certifying the incumbency, and verifying the authenticity
of the signatures, of the specified officers of Borrower authorized to sign this
Fourth Amendment and all such documents requested by Lender in the form attached
hereto as EXHIBIT D.
(b) Execution And Delivery of Loan Documents. Borrower
shall have delivered to Lender, on or before the Closing Date, the following
Loan Documents, each of which shall be in the form of the respective Loan
Documents attached hereto as Exhibits:
(i) Closing Opinions of Counsels for Borrower
(EXHIBIT E).
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(ii) Textron, and Sovereign shall have executed
and delivered to Lender, on or before the Closing Date, the Second Intercreditor
Agreement, in the form attached hereto as EXHIBIT A.
(iii) Such other agreements, documents,
instruments, certificates and materials as Lender may request to evidence the
Indebtedness, to evidence and perfect the rights and Liens and security
interests of Lender contemplated by the Loan Documents, and to effectuate the
transactions contemplated herein.
(c) Sixth Amendment to Second Amended and Restated
Inventory Loan Agreement. Borrower and Lender shall have executed, on or before
the Closing Date, the Sixth Amendment to Second Amended and Restated Inventory
Loan Agreement, in the form attached hereto as EXHIBIT F.
14. Borrower Confirmation. Borrower hereby ratifies and confirms
that the Loan Agreement and other Loan Documents as amended herein are in full
force and effect and agrees that as modified, the Loan Agreement and the other
Loan Documents are and continue to be in full force and effect and enforceable
in accordance with their respective terms. Borrower hereby incorporates by
reference all covenants, warranties, and representations contained in the Loan
Documents and reaffirms such covenants, warranties, and representations as of
the day hereof.
15. Borrower Estoppel; Lender's Waiver. Execution of this Fourth
Amendment by Lender shall be without prejudice to Lender's rights at any time in
the future to exercise any and all rights conferred upon it by any of the Loan
Documents in accordance with their original terms as previously and hereby
amended. Except as expressly provided in this Fourth Amendment and the Second
Intercreditor Agreement, neither the Fourth Amendment nor any provision hereof
or of any other documents given in connection herewith shall constitute or shall
be construed to constitute a waiver of any default, right, or remedy of Lender
under the Loan Documents subsequent to the date hereof. Any failure by Lender at
any point in time during the term of the Note, the Loan Documents or the
Supplemental Loan to insist upon strict and timely compliance with the terms and
provisions of each such document shall not be deemed a waiver either expressly
or implied by Lender of any or its rights under any such document nor shall the
same excuse Borrower's obligation to strictly and timely perform its obligation
hereunder and therein.
16. Release. Borrower hereby desires to fully comprise, release
and settle any and all claims, counterclaims, liabilities, damages, defenses,
demands and causes of action that Borrower has or may have against Lender
related to or that may have arisen, may arise or are or become assertable as a
result of events occurring in connection with the Lending Relationship (as
defined below), including any claims, causes of action or defenses based on the
negligence of Lenders or on any "lender liability" theories of, among others,
bad faith, unfair dealings, duress, coercion, control, misrepresentation,
omission, misconduct, overreaching, unconscionability, disparate bargaining
position, reliance, equity subordination, fraud, failure of consideration in
whole or in part, or otherwise, and do hereby intend to release, compromise and
settle all such claims and matters, whether known or unknown, whether reduced to
judgment, liquidated or unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured and whether they
arose collaterally, directly, derivatively, or otherwise between the Borrower on
the one hand, and Lender, on the other hand (collectively, the "RELEASED
CLAIMS"). Borrower hereby stipulates, agrees, covenants, warrants and represents
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unto the Lender that Borrower does not have any outstanding claims,
counterclaims, liabilities, damages, defenses, demands or causes of action
against Lender or its successors, assigns, directors, officers, employees,
agents and/or attorneys. Borrower does hereby unconditionally forever release,
acquit, settle and discharge Lender and its successors, assigns, directors,
officers, employees, agents and attorneys of and from the Released Claims and
Borrower hereby declares the Released Claims forever released, acquitted,
settled and discharged. As used herein, the term "Lending Relationship" shall
mean a collective reference to the Loan Agreement, any other Loan Documents,
together with any and all negotiations, discussions, acts, omissions, renewals,
extensions, collateral documents, loan agreements, term sheets and other
agreements and actions related thereto.
17. Complete Agreement, Etc. There are and were no oral or written
representations, warranties, understandings, stipulations, agreements, or
promises made by either party or by any agent, employee or other representative
of either party pertaining to the subject matter of the Fourth Amendment which
have not been incorporated into the Fourth Amendment, except as set forth in the
Second Intercreditor Agreement. The Fourth Amendment shall not be modified,
changed, terminated, amended, superseded, waived or extended except by a written
instrument executed by the parties hereto. If any term comment or condition of
this Fourth Amendment is held to be invalid, illegal, or unenforceable as to a
particular person, entity, or situation, the Fourth Amendment will be enforced
to the fullest extent permitted by law as to any other person, entity, or
situation. Except as specifically modified by the terms of the Fourth Amendment
and the Second Intercreditor Agreement, the Note and all the remaining Loan
Documents shall not be affected by the Fourth Amendment and each shall remain in
full force and effect. Except for paragraph 8 above, nothing herein contained
shall be construed to impair Lender's security under any of the Loan Agreements
or Loan Documents nor to limit or impair any rights or powers that Lender now
enjoys or may hereafter enjoy under the Loan Documents for recovery of the
Indebtedness secured hereby.
18. Further Assurances. Borrower agrees to execute such further
documents, instruments and agreements as Lender may require from time to time to
effectuate the terms and conditions and understandings of this Fourth Amendment.
19. Borrower Representations. Borrower hereby represents and
warrants to the Lender that:
(a) The Persons executing the Fourth Amendment on behalf
of the Borrower have full authority to execute the Fourth Amendment on behalf of
Borrower and to bind Borrower thereby;
(b) The execution and delivery by Borrower of the Fourth
Amendment and the performance thereunder by Borrower has not and will not result
in a breach of or constitute a default under any mortgage, lease, bank loan,
credit arrangement or other instrument or agreement to which either Borrower or
the Collateral securing the Loans may be bound or affected;
(c) Borrower is a corporation duly formed, validly
existing and in good standing under the laws of the State of Texas;
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(d) The execution, delivery and performance by the
Borrower of the Fourth Amendment and other Loan Documents as amended as of the
date hereof, have been duly and validly authorized and all consents and
approvals which are necessary for authorization, binding affect, performance,
and enforceability of the Fourth Amendment and all other Loan Documents have
been received; and
(e) Borrower will not be, on or after the date hereof, a
party to any contract or agreement which prohibits Borrower's execution of the
Fourth Amendment or the Sixth Amendment to Second Amended and Restated Inventory
Loan Agreement, or compliance with the terms of the Loan Agreement, the Loan
Documents or the Inventory Loan or Supplemental Loan. Except as set forth in the
Fourth Amendment to Amended and Restated Revolving Credit Agreement dated of
even date herewith, by and among Borrower, Sovereign and Liberty Bank, Borrower
has not agreed or consent to cause or permit in the future (upon the happening
of a contingency or otherwise) any of the Collateral, whether now owned or
hereafter acquired, to be subject to a Lien except in favor of Lender as
provided herein.
(f) Except as disclosed on the attached Schedule 25,
there are no actions, suits, proceedings, orders or injunctions pending or, to
the best of Borrower's knowledge, threatened against or affecting Borrower any
Resort or the Intervals, at law or in equity, or before or by any governmental
authority, in any case individually in which the claim exceeds or would
reasonably be expected to exceed $50,000 or all cases for which claims in the
aggregate exceed or could reasonably be expected to exceed $250,000. Borrower
has received no notice from any court or governmental authority alleging that
Borrower has violated any applicable timeshare act, any of the rules or
regulations thereunder, or any other applicable laws.
(g) Except as otherwise disclosed by the Borrower to
Lender in writing, since September 30, 2003, 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 of September 30, 2003, or the consolidated
statement of income as of such date, other than changes in the ordinary course
of business that 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, 2003, the Borrower has not made any
Distribution.
20. Counterparts. This Fourth Amendment may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument
21. Fair Consideration. Lender's agreements contained herein
constitute valuable, adequate and fair consideration for the obligations of the
Borrower hereunder.
22. No Lender Control. Lender has never been, nor will it ever be,
a partner, joint venturer, alter ego, manager, or controlling person of the
Borrower.
23. No Other Representation. Borrower acknowledges and agrees that
neither Lender nor any person or entity acting on its behalf has made any
representation or promise to Borrower which is not expressly set forth herein or
in the other Loan Documents.
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24. Inventory Loan; Supplemental Loan. The Inventory Loan and
Supplemental Loan are being modified on the date hereof by the Sixth Amendment
to Second Amended and Restated Inventory Loan Agreement. Nothing contained in
this Fourth Amendment shall constitute a modification of the Inventory Loan or
Supplemental Loan.
[THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Borrower, Agent and Lender have caused this Fourth
Amendment to be executed and delivered by their duly authorized officers
effective as of the date first above written.
BORROWER:
SILVERLEAF RESORTS, INC., a Texas
corporation
By: /S/ XXXXX X. XXXXX, XX.
-------------------------------
Name: Xxxxx X. Xxxxx, Xx.
Its: CFO
AGENT AND LENDER:
XXXXXX FINANCIAL, INC.
By: /S/ XXXXXX HERLMANN
-------------------------------
Name: Xxxxxx Herlmann
Its: AVP
LENDER:
UNION BANK OF CALIFORNIA, N.A.
By: /S/ XXXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxx
Its: Vice President
Exhibits and Schedules to Agreement:
Exhibit A Second Intercreditor Agreement
Exhibit B Certificate of Borrower
Exhibit C Certificate of Resolutions of Borrower
Exhibit D Incumbency Certificate
Exhibit E Closing Opinions of Counsel of Borrower
Exhibit F Sixth Amendment to Second Amended and Restated Inventory Loan Agreement
Schedule 25 Litigation Schedule
