Exhibit 10.9
THIRD AMENDMENT AGREEMENT
THIRD AMENDMENT AGREEMENT, dated as of December 19, 2003 (this
"Third Amendment"), to the Amended and Restated Receivables Loan and Security
Agreement, dated as of April 30, 2002, among Silverleaf Finance I, Inc. (the
"Borrower"), Silverleaf Resorts, Inc. ("SRI"), as Servicer, Autobahn Funding
Company LLC, as lender (the "Lender"), DZ Bank AG Deutsche
Zentral-Genossenschaftsbank, Frankfurt Am Main, as agent (the "Agent"), U.S.
Bank Trust National Association , as Agent's Bank, and Wells Fargo Bank
Minnesota, National Association, as Backup Servicer (as the same may have been
amended, supplemented, modified or restated prior to the effectiveness hereof in
accordance with its terms, including by that certain First Amendment to Amended
and Restated Receivables Loan and Security Agreement dated as of August 6, 2002,
and that Second Amendment and Waiver Agreement dated as of June 19, 2003, the
"Existing RLSA"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings attributed thereto in the Existing RLSA, as amended
hereby (as so amended, and as otherwise amended, supplemented, modified or
restated from time to time in accordance with its terms, the "Amended RLSA").
WHEREAS, the parties hereto have agreed to amend certain
provisions of the Existing RLSA on the terms and subject to the conditions
herein set forth;
NOW, THEREFORE, for valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and subject to the fulfillment of
the conditions set forth below, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO THE EXISTING RLSA
1.1 Section 1.01 of the Existing RLSA is hereby amended by
adding the following additional defined terms in appropriate alphabetical order:
"Advance Rate" means, with respect to any credit
facility to which SRI is a party (other than the Heller Credit
Facilities), a fraction (expressed as a percentage), the
numerator of which is the aggregate amount of credit or other
funds available to SRI or any Affiliate thereof (whether
directly or indirectly) under such credit facility (including,
without limitation, any subordinated or term Debt as well as
revolving Debt), and the denominator of which is equal to the
aggregate outstanding principal balance of all Receivables
required to be pledged or sold by SRI or any Affiliate thereof
to any lenders or purchasers in order to receive the full
amount of such credit.
"Distribution" means, with respect to SRI: (a) the
payment or making of any dividend or other distribution of any
funds or other property with respect to capital stock (or with
respect to any options or warrants for, or other rights with
respect to, such stock) of such corporation, other than
distributions of capital stock (or any options or warrants for
such stock) of the same class; or (b) the redemption or other
acquisition by such corporation of any capital stock (or any
options or warrants for such stock, options or warrants) of
such corporation
"Heller Credit Facilities" means the loans made
pursuant to the Amended and Restated Receivables Loan and
Security Agreement dated September 1, 1999 between SRI and
Heller Financial Inc. ("Heller") and the Second Amended and
Restated Inventory Loan and Security Agreement dated March 1,
2001 between SRI and Heller.
"Restricted Payment" means any payment or prepayment
of principal of, premium, if any, or interest, fees or other
charges on or with respect to, or any redemption, purchase,
retirement, defeasance, sinking fund or similar payment or any
claim for rescission with respect to, any Debt other than Debt
(including interest, fees and charges related thereto) arising
pursuant to the terms of the Revolving Credit Facilities as in
effect on the Third Amendment Agreement Date.
"Revolving Credit Facilities" means the revolving
credit facilities listed on the attached Schedule IX together
with the availability thereunder as of the Third Amendment
Agreement Date, provided that, upon the replacement of any
Revolving Credit Facility by a new revolving credit facility
as contemplated by Section 7.01(q) hereof, such new revolving
credit facility shall be included in the term "Revolving
Credit Facilities", instead of the replaced facility.
"Third Amendment Agreement Date" means December 19,
2003.
1.2 The definition of "Borrowing Limit" in Section 1.01 of the
Existing RLSA is hereby amended and restated to read in its entirety as follows:
"Borrowing Limit" means (i) $100,000,000 prior to the
Third Amendment Agreement Date, (ii) $85,000,000 on and after
the Third Amendment Agreement Date, and prior to March 31,
2005, and (iii) $75,000,000 on and after March 31, 2005;
provided, that "Borrowing Limit" shall mean $50,000,000
immediately upon and after the occurrence of the closing or
closings with respect to one or more Securitizations;
provided, further, that at all times, on or after the Early
Amortization Commencement Date, the Borrowing Limit shall mean
the aggregate outstanding amount of the Loans; and provided
further, that at all times on or after the Facility Maturity
Date, the Borrowing Limit shall mean $0 (zero Dollars). The
parties hereto agree, in clarification of the immediately
foregoing definition, that the commercial paper conduit
program provided by Textron Financial Corporation to
Silverleaf Finance II, Inc. in an amount exceeding
$66,000,000, dated on or around December 19, 2003, and
contemplated by the Third Amendment Agreement relating to this
Agreement, shall not constitute a Securitization.
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1.3 The definition of "Capital Limit" in Section 1.01 of the
Existing RLSA is hereby amended by inserting the following sentence at the end
of such definition:
The parties hereto agree, in clarification of, but without
limiting, the immediately foregoing definition, that the
Capital Limit and the use of such term with respect to (i)
calculating the Borrowing Base Deficiency, (ii) the Lender's
obligation to make any Loan pursuant to Section 2.01 hereof,
(iii) the Servicer's obligation to direct payments to the
Agent for the account of the Lender pursuant to Section
2.05(b), (iv) the Borrower's obligation to make borrower
deficiency payments pursuant to Section 2.05(e), (v) the
conditions precedent to Borrowings set forth in Sections
3.02(b) and (c)(iii) or (vi) the occurrence of an Event of
Default pursuant to Section 7.01(a) and (e) shall immediately
take account of any reduction in the Capital Limit arising
from a reduction of the Net Eligible Receivables Balance
related to any reduction of any percentage used to calculate
the Net Eligible Receivables Balance, whether due to the
passing of time or any other event or occurrence.
1.4 The definition of "Facility Maturity Date" in Section 1.01
of the Existing RLSA is hereby amended and restated to read in its entirety as
follows:
"Facility Maturity Date" means March 31, 2006.
1.5 The definitions "Put", "Put Date" and "Put Payment" in
Section 1.01 of the Existing RLSA are each hereby deleted in their entirety.
1.6 The language and punctuation ", the Put Date" is hereby
deleted in each of Sections 2.01, 2.02(a) and 2.02(d) of the Existing RLSA.
1.7 Section 2.17 of the Existing RLSA is deleted in its
entirety.
1.8 Article IV of the Existing RLSA is hereby amended by
inserting the following Section 4.02 at the end of such Article IV:
4.02 Representations and Warranties of the Borrower
and the Servicer as of the Third Amendment Agreement Date.
Each of the Servicer and the Borrower (each as to itself)
hereby represents and warrants, as of the Third Amendment
Agreement Date, that attached hereto as Schedule IX is a true
and complete list of all of the revolving credit facilities of
the Servicer, other than the Servicer's revolving credit
facility with Heller Financial, Inc., together with the amount
of the availability pursuant to each such revolving credit
facility as of the Third Amendment Agreement Date.
1.9 Section 6.12 of the Existing RLSA is hereby amended by
inserting the following subsection 6.12(f) at the end of such Section 6.12:
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(f) As soon as available and no later than twenty
days after the end of each calendar month in each fiscal year
of the Borrower, SRI shall deliver to the Lender and the Agent
two copies of:
(i) an unaudited balance sheet of the
Borrower as of the end of such calendar month setting
forth in comparative form the corresponding figures
for the most recent year-end for which an audited
balance sheet, if any, has been prepared, which
balance sheet shall be prepared and presented in
accordance with GAAP and shall be certified by the
financial vice president, treasurer, chief financial
officer or controller of the Borrower as fairly
presenting the financial condition of the Borrower;
and
(ii) unaudited statements of income and cash
flow of the Borrower for such calendar month, in each
case and for the portion of the fiscal year ending
with such calendar month setting forth in comparative
form the corresponding figures for the comparable
period one year prior thereto (subject to normal
year-end adjustments), which such statements shall be
prepared and presented in accordance with GAAP and
shall be certified by the financial vice president,
treasurer, chief financial officer or controller of
the Borrower as fairly presenting the financial
condition of the Borrower.
1.10 Section 7.01 of the Existing RLSA is hereby amended by
deleting subsection 7.01(q) and inserting in its place the following:
(q) the aggregate availability pursuant to SRI's
combined Revolving Credit Facilities shall be reduced by an
amount in excess of 15% of such aggregate availability as of
the Third Amendment Agreement Date without the prior written
consent of the Agent (the parties hereto agreeing, in
clarification of this subsection 7.01(q), that no facility
provided by the Agent or the Lender shall be included in the
calculation of aggregate availability pursuant to SRI's
combined Revolving Credit Facilities or the reduction of such
availability); provided, that each Revolving Credit Facility
may be replaced by a substantially similar revolving credit
facility of at least the same term which (i) results in the
aggregate availability under the Revolving Credit Facilities
after such replacement being maintained at, or increased from,
the level in effect immediately prior to such replacement and
(ii) does not result in a decrease in the aggregate amount of
the lenders' commitments pursuant to the Revolving Credit
Facilities after giving effect to such replacement;
(r) SRI shall make any Restricted Payment other than
(1) any contractually-obligated term loan prepayments,
including, without limitation, term loan prepayment funded by
way of advances under the Revolving Credit Facilities, (2) its
contractually-obligated regularly scheduled interest payments,
including such payments pursuant to the commercial paper
conduit program provided by Textron Financial Corporation to
Silverleaf Finance II, Inc. dated on
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or around December 19, 2003, and (3) its non-accelerated
principal installment payments, to the extent applicable,
subject to the terms of any subordination agreements and
subordination provisions pertaining thereto and provided,
however, that SRI may prepay any Heller Credit Facilities with
a facility in an aggregate principal amount equal to the
amount outstanding under such Heller Credit Facility at the
time of such prepayment;
(s) the Advance Rate with respect to any credit
facility (other than the Heller Credit Facilities and the
facility evidenced by this Agreement and the other Transaction
Documents) to which SRI or any Affiliate thereof is a party
shall be less than 75%; or
(t) SRI shall directly or indirectly declare or make,
or incur any liability to make, any Distribution.
1.11 Schedule VI to the Existing RLSA is hereby amended and
restated to read in its entirety as set forth in Schedule VI to this Third
Amendment.
1.12 The Existing RLSA is hereby amended by attaching a
Schedule IX thereto to read in its entirety as set forth in Schedule IX to this
Third Amendment.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Third Amendment shall be effective upon:
(1) the delivery to the Agent of counterparts hereof executed
by each of the parties hereto;
(2) the payment by the Borrower of an extension fee of
$500,000 to the Agent, for the benefit of the Lender, which fee is
fully-earned as of the date hereof, is non-refundable for any reason
whatsoever, constitutes compensation for services and does not
constitute interest or a charge for the use of money
(3) the delivery to the Agent of evidence satisfactory to the
Agent that (x) Silverleaf Finance II, Inc. shall have entered into a
commercial paper conduit program with Textron Financial Corporation in
a principal amount exceeding $66,000,000 and (y) SRI shall have entered
into amendments to SRI's Revolving Credit Facilities with Sovereign
Bank and Textron Financial Corporation extending the commitment period
of each such Revolving Credit Facility to at least March 31, 2006; and
(4) the payment to Kaye Scholer LLP of all outstanding legal
fees related to its representation of the Lender and the Agent in
connection with this Third Amendment and/or the Existing RLSA.
SECTION 3. MISCELLANEOUS
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3.1 The Borrower and SRI each hereby certifies that the
representations and warranties set forth in Article IV of the Amended RLSA (and
any other representations and warranties made by the Borrower or SRI in the
Amended RLSA) are true and correct on the date hereof with the same force and
effect as if made on the date hereof, except to the extent that (i) such
representations and warranties speak specifically to an earlier date in which
case they shall have been true and correct on such date or (ii) with respect to
Section 4.01(bb) of the Amended RLSA, any inaccuracy has arisen solely due to
the increase in the allowance for uncollectible notes in the amount of
$28,711,000 recognized during the fiscal quarter of SRI ending March 31, 2003.
In addition, the Borrower and SRI each represents and warrants (which
representations and warranties shall survive the execution and delivery hereof)
that (a) no unwaived Early Amortization Event or Event of Default (nor any event
that but for notice or lapse of time or both would constitute an unwaived Early
Amortization Event or Event of Default) shall have occurred and be continuing as
of the date hereof nor shall any unwaived Early Amortization Event or Event of
Default (nor any event that but for notice or lapse of time or both would
constitute an unwaived Early Amortization Event or Event of Default) occur due
to this Third Amendment becoming effective, (b) the Borrower and SRI each has
the corporate power and authority to execute and deliver this Third Amendment
and has taken or caused to be taken all necessary corporate actions to authorize
the execution and delivery of this Third Amendment, and (c) no consent of any
other person (including, without limitation, shareholders or creditors of the
Borrower or SRI), and no action of, or filing with any governmental or public
body or authority is required to authorize, or is otherwise required in
connection with the execution and performance of this Third Amendment other than
such that have been obtained.
3.2 The Amended RLSA is hereby ratified and confirmed in all
respects and remains in full force and effect in accordance with its terms.
3.3 All references in the Amended RLSA to "this Agreement" and
"herein" and all references to the Existing RLSA in the documents executed in
connection with the Existing RLSA shall mean the Amended RLSA.
3.4 This Third Amendment may be executed by the parties hereto
individually or in combination, in one or more counterparts, each of which shall
be an original and all of which shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Third Amendment
by facsimile shall be effective as delivery of a manually executed counterpart
of this Third Amendment.
3.5 The Borrower hereby agrees to pay all costs and expenses
incurred by the Lender and the Agent in connection with this Third Amendment
including, without limitation, the fees and expenses of Kaye Scholer LLP,
counsel to the Lender and the Agent.
0.1 THIS THIRD AMENDMENT SHALL, IN ACCORDANCE WITH SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICTS OF LAW
PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
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IN WITNESS WHEREOF, the parties hereto have executed this
Third Amendment as of the date first above written.
SILVERLEAF FINANCE I, INC.
By: /s/ HARRY J. WHITE, JR.
-------------------------------------
Name: Harry J. White, Jr.
Title: CFO
SILVERLEAF RESORTS, INC.
By: /s/ HARRY J. WHITE, JR.
-------------------------------------
Name: Harry J. White, Jr.
Title: CFO
DZ BANK AG DEUTSCHE ZENTRAL -
GENOSSENSCHAFTSBANK, FRANKFURT AM
MAIN, as Agent
By: /s/ PATRICK PREECE
-------------------------------------
Name: Patrick Preece
Title: Vice President
By: /s/ RICHARD J. WISNIEWSKI
-------------------------------------
Name: Richard J. Wisniewski
Title: Vice President
AUTOBAHN FUNDING COMPANY LLC
By: DZ Bank AG Deutsche Zentral -
Genossenschaftsbank, Frankfurt Am
Main, its attorney-in-fact
By: /s/ PATRICK PREECE
--------------------------------------
Name: Patrick Preece
Title: Vice President
By: /s/ RICHARD J. WISNIEWSKI
--------------------------------------
Name: Richard J. Wisniewski
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ IGNAZIO TANBARELLO
--------------------------------------
Name: Ignazio Tanbarello
Title: Assistant Vice President
WELLS FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION
By: /s/ SUE DIGNAN
--------------------------------------
Name: Sue Dignan
Title: Assistant Vice President
List of Exhibits and Schedules to Agreement:
Schedule VI Net Eligible Receivables Balance
Schedule IX Revolving Credit Facilities
IX-1