Ex.
10.1
 
 THIRD
AMENDMENT TO
 CONSOLIDATED,
AMENDED AND RESTATED
 LOAN
AND SECURITY AGREEMENT
 AND
LOAN DOCUMENTS
  
 THIS
THIRD AMENDMENT TO CONSOLIDATED, AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT AND LOAN DOCUMENTS, dated as of May 8, 2009 (the “Third Amendment”),
by and between TEXTRON FINANCIAL CORPORATION, a Delaware corporation (the
“Lender”), and SILVERLEAF RESORTS, INC. (formerly known as SILVERLEAF VACATION
CLUB, INC.), a Texas corporation (the “Borrower”).
  W
I T N E S S E T H:
  WHEREAS,
Lender and Borrower are parties to that certain Consolidated, Amended and
Restated Loan and Security Agreement, dated as of February 21, 2007, as amended
by that certain Amendment to Consolidated, Amended and Restated Loan and
Security Agreement and Loan Documents, dated as of October 31, 2007 and as
further amended by that certain Second Amendment to Consolidated, Amended and
Restated Loan and Security Agreement and Loan Documents, dated as of May 20,
2008 (collectively, the “Agreement”);
  WHEREAS,
Borrower has requested an extension of the revolving loan term during which the
Borrower may obtain Advances under the Revolving Loan Component;
and
  WHEREAS,
Borrower has agreed, among other things, to reductions in the maximum amount of
the Note Receivable Component and the Inventory Loan Component and the maximum
aggregate amount of the Inventory Loan Component and the Acquisition
Component;
  WHEREAS,
pursuant to Section 7.2(b) of the Agreement and pursuant to the Negative Pledge
effective March 10, 2005 and recorded in the Real Property Records of Smith
County, Texas on April 11, 2005 in Volume 7763, Page 256, as Document No.
2005-R0017115 (the “Negative Pledge”), Borrower is prohibited from transferring,
selling, pledging, or conveying any resort facilities or amenities at The
Villages Resort in Smith County, Texas known as the Water Park at the Villages
(the “Water Park”) without first obtaining Lender’s written
consent;
  WHEREAS,
Borrower is attempting to obtain financing for the Water Park by means of a
sale/leaseback or other such transaction and to apply the net proceeds from such
transaction (the “Net Proceeds”) in the amount of not less than two million four
hundred thousand dollars ($2,400,000.00) in partial prepayment of certain senior
subordinated notes issued by Borrower and due in 2010 (the “Senior Subordinated
Notes”) at a discount;
  WHEREAS,
in consideration for Lender’s agreement to extend the revolving loan term for
the Revolving Loan Component and Lender’s agreement to release the Negative
Pledge and to consent to the sale of the Water Park, Borrower has agreed to a
reduction in the maximum amount of the Note Receivable Component and the
Inventory Loan Component and the maximum aggregate amount of the Inventory Loan
Component and the Acquisition Component; and
  
  NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as
follows:
  1. Defined
Terms.  Except as expressly set forth herein, terms used but
not defined herein shall have the meaning ascribed to such terms in the
Agreement.
  2. Inventory
Loan Component.  The term “Inventory Loan Component” is hereby
amended in its entirety to read as follows:
  “InventoryLoan
Component.  The term Inventory Loan Component shall mean that
certain timeshare interval inventory loan provided by Lender to Borrower
pursuant to this Agreement in the following amounts: (a) $50,000,000.00 until
July 8, 2009; (b)$30,000,000.00 beginning on July 8, 2009; and (c)
$25,000,000.00 beginning on December 31, 2009.”
  3. Commitment.  The
term “Commitment” is hereby amended in its entirety to read as
follows:
  “Commitment.  The
term “Commitment” shall refer singly to the obligation of Lender to make a Loan
or Loans to Borrower and collectively to all Loans to be made by Lender to
Borrower as provided herein.  The maximum aggregate Commitment of
Lender hereunder shall be: (a) $100,000,000.00 until July 8, 2009; (b)
$80,000,000.00 beginning on July 8, 2009, and (c) $75,000,000.00 beginning on
December 31, 2009, provided, however, that: (i) the maximum Commitment of Lender
with respect to the Acquisition Loan Component shall be $10,000,000.00; (ii) the
maximum Commitment of the Lender with respect to the Inventory Loan Component
shall be (d) $50,000,000.00 until July 8, 2009; (e) $30,000,000.00 beginning on
July 8, 2009 and (f) $25,000,000 beginning on December 31, 2009; (iii) the
Maximum aggregate Commitment of Lender with respect to the Acquisition Loan
Component and the Inventory Loan Component shall be (g) $50,000,000 until July
8, 2009, (h) $30,000,000.00 beginning on July 8, 2009 and (i) $25,000,000.00
beginning on December 31, 2009; and (iv) the maximum aggregate Commitment of
Lender hereunder shall be reduced by the aggregate of: (x) the outstanding
principal balance from time to time of the Notes purchased by Lender pursuant to
the Note Purchase Documents and (y) an amount equal to ten and one half percent
(10.5%) of the outstanding principal balance of the TFC Conduit Loan from time
to time.  The available amount of the Commitment that Borrower may
borrow from time to time as an Advance hereunder shall be determined by Lender
on the date of each request by Borrower for an Advance, but in no event less
frequently than the last day of each month during the Term hereof, based upon
the then current aggregate principal balance on each such determination date of
the Loan, the Notes and the TFC Conduit Loan.”
  2
  4. Revolving
Loan Term.  The term “Revolving Loan Term” is hereby amended in
its entirety to read as follows:
  “Revolving
Loan Term.  Shall mean: (a) the period beginning on the Closing
Date and ending on January 31, 2010 with respect to the Acquisition Loan
Component and the Inventory Loan Component; and (b) with respect to the
Receivable Loan Component, the period beginning on the Closing Date and ending
on January 31, 2011, provided, however, that if the Borrower fails to pay down
the outstanding balances of the Receivable Loan Component and the Inventory Loan
Component in accordance with Section 2.5A hereof, then the Revolving Loan Term
shall end on January 31, 2010.”
  5. Revolving
Loan and Lending Limits – Inventory Loan Component -- Payoff of Portion of Loan
Secured by Florida Inventory.The last sentence
of Section 2.2(b) of the Agreement is hereby amended and the following is added
in place thereof:
  “Notwithstanding
anything in this Section 2.2(b) or Section 2.2(c) to the contrary, the aggregate
amount of all Advances outstanding from time to time with respect to the
Acquisition Loan Component and the Inventory Loan Component may not exceed, in
the aggregate, $50,000,000.00 until July 8, 2009, $30,000,000.00 beginning on
July 8, 2009, and $25,000,000.00 beginning on December 31,
2009.  Beginning on May 8, 2009, Borrower shall no longer be permitted
to submit Requests for Advances with respect to Inventory at the Orlando Breeze
Resort in Polk County, Florida.  On or before the July 8, 2009,
Borrower shall pay off all of that portion of the principal balance of the
Inventory Loan Component secured by mortgages on Inventory from the Orlando
Breeze Resort in Polk County, Florida.”
  6. Revolving
Loan and Lending Limits – Acquisition Loan Component.  The last
sentence of Section 2.2(c) of the Agreement is hereby amended to read as
follows:
  “Notwithstanding anything in this
Section 2.2(c) or Section 2.2(b) to the contrary, the aggregate amount of all
Advances outstanding from time to time with respect to the Acquisition Loan
Component and the Inventory Loan Component may not exceed, in the aggregate,
$50,000,000.00 until July 8, 2009, $30,000,000.00 beginning on July 8, 2009, and
$25,000,000.00 beginning on December 31, 2009.”
  7. Prepayments - Receivable
Loan Component.
  Section
2.5(a)(i)  of the Agreement is hereby amended to read as
follows:
  “(i)  Voluntary
Prepayments.  Except for regular payments of interest and
principal as provided hereunder, prepayments, (i) shall not be permitted during
the Revolving Loan Term except for any prepayment of the Note Receivable Loan
Component received by Lender on or before January 31, 2011 (which prepayment
shall not be subject to a Prepayment Premium), and (ii) may be made, subject to
Section 2.6 hereof, in whole, but not in part, upon five (5) days prior written
notice to the Lender at any time after the end of the Revolving Loan Term upon
payment of the applicable Prepayment Premium (whether such prepayment results
from voluntary payments by Borrower, acceleration, or otherwise); provided,
however, that (A) payments or prepayments of Pledged Notes Receivable made by
Purchasers who are not directly or indirectly solicited by Borrower to make such
prepayment shall not violate this Section 2.5(a)(i), and no Prepayment Premium
shall be payable as a result of any such payment by Purchasers; and (B) if at
any time the Borrower wishes to release any Pledged Notes Receivable for the
purpose of including those Pledged Notes Receivable in a securitization, pooling
or similar conduit transaction, and after 30 days’ prior written notice to
Lender, Borrower may prepay the principal balance of the Loan in whole or in
part, to the extent necessary to cause the then current outstanding unpaid
principal balance of the Loan to be equal to or less than the Borrowing Base,
and, except as provided in Section 2.6 hereof, no Prepayment Premium will be due
where such prepayment is the result of a securitization closing, as certified by
Borrower to Lender.  If Borrower voluntarily prepays the entire
Receivables Loan Component, then Borrower shall pay to Lender the fee described
in Section 2.6 hereof, shall no longer be entitled to Advances of the
Acquisition Loan Component or the Inventory Loan Component and the outstanding
principal balance under the Inventory Loan Component and the Acquisition Loan
Component shall be repaid as provided in this Section 2.5(a)(i).  Any
payments made pursuant to Section 2.5A hereof shall not be deemed to be
prepayments subject to this Section 2.5.”
  3
  8. Prepayments - Receivable
Loan Component.
  Section
2.5(a)(iii) of the Agreement is hereby amended to read as follows:
  “(iii)
Prepayment
Premium.  Except as specifically set forth in Section 2.5(a)(i)
above, any prepayment of the Loan pursuant to Section 2.5(a)(i) above must be
accompanied by a prepayment premium (the “Prepayment
Premium”) calculated, as of immediately prior to such prepayment, as
follows:
  Date
      of Prepayment
                      
                      PremiumDuring
      the first Loan Year after the expiration of the Revolving Loan
      Term;
                      
                      Two
      percent (2%) of the then outstanding balance of the
  Loan;During
      the second Loan Year after the expiration of the Revolving Loan
      Term;
                      
                      One
      percent (1%) of the then outstanding balance of the
  Loan;Thereafter
                      
                      Zero”
   9. Required
Pay-Down Payments.  The Agreement is
hereby amended by adding the following as Section 2.5A immediately prior to
Section 2.6:
  2.5A        Required
Pay-Down Payments.Borrower shall
make principal payments on the Receivable Loan Component and the Inventory Loan
Component, respectively, as applicable, in order to reduce the outstanding
principal balance of each respective Loan Component to:  (a) the
amount of the maximum Commitment for each such Loan Component; and (b) the
aggregate maximum Commitment for both such Loan Components, all as provided in
Section 3 of this Third Amendment.
  4
  10. Loan
Component Ratio – Balance Trigger. The second sentence of Section 2.6 of
the Agreement, Loan
Component Ratio, is hereby amended to read as follows:
  “If the 1
to 1 ratio is not maintained for any such six month period, and during that same
period, the average outstanding principal balance of the Receivable Loan
Component is less than the “Balance Trigger” for such six (6) month period,
Borrower shall pay Lender a fee equal to 1⁄4% of the difference between the
average outstanding principal balance of the Receivable Loan Component for such
six (6) month period and the Balance Trigger for such six (6) month
period.”
  The
“Balance Trigger” shall be the amounts set forth below.
  
 For
      the Six-Month Period(s) ending
                  Balance
      TriggerOn
      or before July 31, 2009
                  $50,000,000.00On
      or after August 31, 2009 and on or before December 31,
2009
                  $30,000,000.00On
      and after January 31, 2010
                  $25,000,000.00
  11. Loan
Component Ratio – Leeway Period.Section 2.6  of
the Agreement is hereby further amended by: (a) adding the following as the
third sentence thereof; and (b) retaining the current third sentence thereof as
the fourth sentence thereof, which shall appear immediately after the
following::
  “No
such fee shall be due for failure to satisfy the foregoing requirements relating
to the ratios of the respective loan components (the “Loan Component Ratio
Requirements”) pursuant to the immediately preceding sentence during the period
beginning on July 1, 2009 and ending on December 31, 2009 (the “Leeway Period”)
if during the Leeway Period: (a) there is no Event of Default; and (b) the
Borrower pays down the outstanding balances of the Receivable Loan Component and
the Inventory Loan Component in accordance with Section 2.5A of the
Agreement.”
  5
  12. Maximum
Obligation.  Section 2.7 is hereby amended in its entirety to
read as follows:
  “2.7           Maximum
Obligation of Textron Financial Corporation Under the
Loan.  Borrower acknowledges, agrees and confirms as follows:
(i) notwithstanding anything to the contrary in Section 2.2(b) and 2.2(c)
hereof, the aggregate principal balance of the Acquisition Loan Component and
the Inventory Loan Component shall not exceed (A) $50,000,000 before July 8,
2009, (B) $30,000,000.00 beginning on July 8, 2009, and (C) $25,000,000.00
beginning on December 31, 2009; and (ii) notwithstanding anything to the
contrary herein, in any other Loan Document or in any document evidencing or
securing the Receivable Loan Component, the Inventory Loan Component and/or the
Acquisition Loan Component, Lender shall not be obligated to fund any Advance
hereunder, whether of the Receivable Loan Component, the Inventory Loan
Component and/or the Acquisition Loan Component, that, when taken together with
all loans or advances made by Lender to Borrower under this Agreement, the
Receivable Loan Agreement, and/or the Restated Inventory Loan Agreement and the
outstanding principal balance of the Notes and an amount equal to ten and
one-half percent (10.5%) of the outstanding principal balance of the TFC Conduit
Loan, would cause the aggregate amount of such loans, advances and principal
balances to exceed a maximum aggregate amount of $100,000,000.00 before July 8,
2009, $80,000,000.00 beginning on July 8, 2009, and $75,000,000.00 beginning on
December 31, 2009. The available amount of the Commitment that Borrower may
borrow from time to time as an Advance hereunder shall be determined by Lender
on the date of such request by Borrower for Advance, but in no event less
frequently than the last day of each month during the Term hereof, based upon
the then current aggregate principal balance as of each such determination date
of the Loan, the Notes and the TFC Conduit Loan.”
  13. Minimum
Loan Usage Fee.  Section 2.12 is hereby amended in its entirety
to read as follows:
  “2.12         Minimum
Loan Usage Fee.  In addition to the interest payable pursuant
to this Agreement, during the Revolving Loan Term the Borrower shall pay to
Lender, on the first day of each month up to and including June 1, 2009, a usage
fee equal to the product of: (a) $100,000,000.00 (less  the aggregate
average daily outstanding principal balance, during the immediately preceding
month of the Acquisition Loan Component, the Inventory Loan Component, the
Receivable Loan Component, the Notes and an amount equal to ten and one-half
percent (10.5%) of the average daily outstanding principal balance, during the
immediately preceding month, of the TFC Conduit Loan) times (b) one quarter
percent (.25%) For the month beginning on May 1, 2009 and each month thereafter,
there shall be no minimum loan usage fee due under the Agreement.”
  14. Warranty
of Title and Entitlement to Net Proceeds -- Sale of Water
Park.  Borrower represents and warrants that Borrower holds
title to the Water Park and its components (including but not limited to, the
Main Entry, Lockers, Food Service equipment, POS System, the WaterPark Building,
pools, decks and lazy river, attractions (AquaPlay, slides, tubes), the Dectron
Unit (HVAC system), telephones and computers, furniture, fixtures and equipment,
landscaping, site improvements, signs and monuments), that Borrower has the
right to sell the Water Park and that Borrower is entitled to the Net Proceeds,
free from the claims of the Silverleaf Club.  Borrower and Lender
shall enter into separate documentation satisfactory to Lender consenting to the
sale of the Water Park and releasing the Negative Pledge to permit such
sale.
  6
  15. Commitment
Fee.  In consideration of Lender’s agreement to extend the
Revolving Loan Term as set forth herein, Borrower agrees to pay Lender, upon
execution of this Third Amendment by Borrower, a commitment fee of $200,000.00
and Lender’s legal fees incurred in connection with this Third
Amendment.
  16. Further
Documentation.  Borrower agrees to execute and deliver to
Lender any and all additional documentation as Lender may now or hereafter
require in order to effectuate the terms and conditions of this Third
Amendment.
  17. Effect of
Third Amendment.  Except as herein expressly amended, the
Agreement shall remain unmodified and in full force and effect.
  18. Ratification
and Confirmation.  Except as herein expressly amended, Borrower
hereby ratifies, confirms, assumes and agrees to be bound by all of
representations, warranties, statements, covenants and agreements set forth in
the Agreement and the other Loan Documents.  The Borrower reaffirms,
restates and incorporates by reference all of the representations, warranties,
covenants and agreements made in the Loan Documents as if the same were made as
of this date.  The Borrower agrees to pay the Loan and all related
expenses, as and when due and payable in accordance with the Loan Agreement and
the other Loan Documents, and to observe and perform the Obligations, and do all
things necessary which are not prohibited by law to prevent the occurrence of
any Event of Default.  In addition, to further secure, and to evidence
and confirm the securing of, the prompt and complete payment and performance by
the Borrower of the Loan and all of the Obligations, for value received,
Borrower unconditionally and irrevocably assigns, pledges and grants to Lender,
and hereby confirms or reaffirm the prior granting to Lender of, a continuing
first priority Lien, mortgage and security interest in and to all of the
Collateral, whether now existing or hereafter acquired.  Also, as
provided in the Loan Documents, the Loan is and shall be further secured by the
Liens and security interests in favor of Lender in the properties and interests
relating to Additional Eligible Resorts, which now or hereafter serve as
collateral security for any Obligations.  On the date of this Third
Amendment and thereafter upon satisfaction of the requirements for approval by
Lender of Additional Eligible Resorts, Borrower shall record, or cause to be
recorded, such mortgages, deeds of trust, deeds to secure debt, assignments,
pledges, security agreements and UCC Financing Statements in the appropriate
public records of the state in which each Resort is located to further evidence
and perfect the Lender’s Lien on the Collateral.  Borrower agrees to
deliver or cause to be delivered by its Affiliates, such mortgages, deeds of
trust, deeds to secure debt, assignments, pledges, security agreements and UCC
Financing Statements as Lender may deem necessary to further evidence and
perfect the Lender’s Lien on the Collateral.
  19. Estoppel.  The
Loan constitutes valuable consideration to the Borrower, which consideration is
uninterrupted and continuous since the dates on which the Loan was first
made.  This Third Amendment and the other Loan Documents and the Loan
modifications and transactions provided for or contemplated hereunder or
thereunder, shall in no way adversely affect the Lien or perfection or priority
of any Lien of Lender as of the date hereof in and to any Collateral, and are
not intended to constitute, and do not constitute or give rise to, any novation,
cancellation or extinguishment of any of Borrower’s Obligations existing as of
the date hereof to Lender, or of any interests owned or held by Lender (and not
previously released) in and to any of the Collateral; it being the intention of
the parties that the transactions provided for or contemplated herein shall be
effectuated without any interruption in the continuity of the value and
consideration received by Borrower, and of the attachment, perfection, priority
and continuation in favor of Lender in and to all Collateral and
proceeds.
  7
  20. Loan
Documents.  This Third Amendment shall amend, without the
necessity of any further agreements, all Loan Documents as of the date hereof to
reflect:  (1) an Inventory Loan Component of $50,000,000.00 until July
8, 2009; (2) the decrease of the Inventory Loan Component from $50,000,000.00 to
$30,000,000.00 beginning on July 8, 2009 and to $25,000,000.00 beginning on
December 31, 2009; (3) a maximum aggregate Commitment of Lender with respect to
the Acquisition Loan Component and the Inventory Loan Component of
$50,000,000.00 until July 8, 2009; (4) the decrease of the Maximum aggregate
Commitment of Lender with respect to the Acquisition Loan Component and the
Inventory Loan Component from $50,000,000.00 to $30,000,000.00 beginning on July
8, 2009 and to $25,000,000.00 beginning on December 31, 2009; (5) the maximum
aggregate commitment of Lender under the Agreement of $100,000,000.00 until July
8, 2009; and (6) the decrease of the maximum aggregate commitment of Lender
under the Agreement to $80,000,000.00 beginning on July 8, 2009 and to
$75,000,000.00 beginning on December 31, 2009.
  8
 Ex. 10.1
  IN
WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
executed on their behalf as of the day and year first written
above.
  Witnessed
      By:
                                                        
                                                        TEXTRON
      FINANCIAL CORPORATION/S/ GINGER HAYES
                                                        
                                                        By
                                                        /S/ JOHN D’ANNIBALEName:  John
      D’AnnibaleIts:
      Vice PresidentSILVERLEAF
      RESORTS, INC./S/MIKE
      NORRIS
                                                        
                                                        By
                                                        /S/ ROBERT M. SINNOTTName:  Robert
      M. Sinnott/S/PHIL
      DAVIS
                                                        
                                                        Its:
      Chief Financial
Officer
  
 Ex. 10.1
  STATE
      OF CONNECTICUT
                        ))
                        ss:COUNTY
      OF HARTFORD
                        )
 
  At
________________ in said County and State on this 7th
day of May 2009, personally appeared John D’Annibale, duly
authorized Vice President of Textron Financial Corporation, and he/she
acknowledged the foregoing instrument by him/her signed and sealed to be his/her
free act and deed and the free act and deed of Textron Financial
Corporation.
  Before
      me:
                      /S/ MARIE G.
IRIZARRYNotary
      Public in and for said StateMy
      Commission Expires:July 31,
    2012
 
  
  STATE
      OF TEXAS
                    ))
                    ss:COUNTY
      OF DALLAS
                    )
 
  At
____________________ in said County and State on this 7th
day of May 2009, personally appeared Robert M. Sinnott,
duly authorized officer of SILVERLEAF RESORTS, INC., and he/she acknowledged the
foregoing instrument by him/her signed and sealed to be his/her free act and
deed and the free act and deed of Silverleaf Resorts, Inc., a Texas corporation,
on behalf of the corporation.
  Before
      me:
                      /S/ JOANN POSIVALNotary
      Public in and for said StateMy
      Commission Expires:July 22,
    2012