Exhibit 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “
First Amendment ”), dated as of July 2, 2008, is
by and between SILVERLEAF RESORTS, INC. , a Texas
corporation, having an address of 1221 River Bend Drive,
Suite 120, Dallas, Texas 75247 (“Borrower”) and
LIBERTY BANK , a Connecticut non stock mutual savings bank,
having an office and place of business at 315 Main Street,
Middletown, Connecticut 06457 (the “ Lender
”).
RECITALS
A. WHEREAS, pursuant to the
terms and subject to the conditions of that certain Loan and
Security Agreement, dated as of September 28, 2007 by and
between Lender and Borrower, as amended by a letter agreement dated
November 15, 2007 and accepted December 14, 2007 (such
Loan and Security Agreement as so amended, and as amended hereby
and as may hereafter be amended, restated, supplemented or modified
from time to time, being hereinafter referred to as the “
Loan Agreement ”). Lender has agreed to make available
to Borrower revolving credit facilities in a maximum principal
amount of up to $37,500,000.00; and
B. WHEREAS, Borrower has
requested Lender, and Lender has agreed subject to the terms and
conditions of this First Amendment, to amend certain provisions of
the Loan Agreement; and
C. WHEREAS, in furtherance of
the foregoing and to evidence the agreements of the parties hereto
in relation thereto, the parties hereto desire to amend the Loan
Agreement and to enter into such other agreements as are
hereinafter provided.
AGREEMENT
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:
Article 1
Definitions
1.01 Capitalized terms used
and not otherwise defined in this First Amendment shall have the
meanings assigned to such terms in the Loan Agreement, as amended
hereby.
Article 2
Amendments to Loan Agreement
The Loan Agreement is hereby amended
as follows, such amendments to be deemed effective as of the First
Amendment Effective Date (defined below):
2.01 Amendments to
Article I Section 1.1 Definitions . As of
the First Amendment Effective Date, the following definitions are
hereby amended and added as follows:
(A) Change to Definition of Final Maturity
Date . The Definition of Final Maturity Date shall
become:
“
Final Maturity Date means July 2, 2013 or such
date as is thirty six (36) months following the extension of
any Revolving Loan Period.”
(B) Change to Definition of Interest Rate
. The Definition of Interest Rate shall become:
“ Interest Rate means a variable rate,
adjusted as of each LIBO Rate Determination Date, equal to the LIBO
Rate, determined as of each LIBO Rate Determination Date, plus two
hundred and forty (240) basis points per annum provided
however that at no time, for calculation of the Interest Rate,
shall the LIBO Rate be less than 2.85%.
(C) Change to Definition of Loan Year .
The Definition of Loan Year shall become:
“ Loan Year means the period from the
First Amendment Effective Date through the last day of the next
full twelve (12) calendar month period and each twelve
(12) calendar month period thereafter.”
(D) Change to Definition of Maximum Amount
. The Definition of Maximum Amount shall become:
“
Maximum Amount means an aggregate amount not to
exceed at any time $72,500,000.00 provided that such maximum amount
is subject to the restrictions set forth in
Section 2.1(a) and Section 2.1(c) of the
Loan Agreement.”
(E) Change to Definition of Revolving Loan
Period . The Definition of Revolving Loan Period
shall become:
“ Revolving Loan Period means the period
commencing with the First Amendment Effective Date during which the
Borrower may borrow, repay and re-borrow Advances and terminating
on July 2, 2010 or such later date pursuant to
Section 2.3(c) of the Loan Agreement.”
(F) Addition of Definition of “First Amendment
Effective Date ”. As of the First Amendment
Effective Date, the Definition of “First Amendment Effective
Date” set forth below shall be added to Article I
Section 1.1 of the Loan Agreement in appropriate alphabetical
order to read in its entirety as follows:
“
First Amendment Effective Date shall mean
July 2, 2008.”
2.02 Amendments To
Section 2 Revolving Loan and Lending Limits .
As of the First Amendment Effective Date:
(A) Change to Section 2.1(c) of the Loan
Agreement (Maximum Advances) . Section 2.1(c) is
hereby amended and restated to read in its entirety as
follows:
“
2. 1(c) Maximum Amount of Advances .
Notwithstanding anything to the contrary contained herein, no
Lender shall have an obligation to make an Advance of its Pro Rata
Percentage thereof hereunder to the extent that (i) the
aggregate of Advances outstanding would cause
2
the Loan
to exceed the lesser of (A) Borrowing Base, (B) the
Availability or (C) the Commitment, or (ii) in an amount
which would cause the aggregate outstanding principal balance of
Liberty Bank’s Commitment retained by Liberty Bank and not
participated to other lenders to exceed Forty Million Dollars
($40,000,000); or (C) such an Advance would cause such Lender
or any Participant in such loans to violate any legal lending limit
under Section 2.5 hereof or otherwise.”
(B) Change to Section 2.3(c) of the Loan
Agreement (Payments) . Section 2.3(c) is hereby
amended and restated to read in its entirety as follows:
“
2.3 Origination Fee; Renewal Fee(s); Unused Line Fee;
and Late Fee . Borrower shall pay the Origination Fee as
prescribed in Section 4.2 of the Loan Agreement. In
addition, annually for each twelve-month extension to the Revolving
Loan Period agreed to in writing by Agent, Lenders and Borrower
(and without binding any of the foregoing parties in advance to
enter into such an extension), Borrower shall pay a fee of 0.25%
(each, a “Renewal Fee”) of the Commitment on or before
the effective date of such extension. In addition, the Borrower
shall pay an unused line fee (the “Unused Line Fee”)
calculated as of the last day of each calendar month equal to one
quarter of one percent (0.250%) per annum of the difference between
(i) the Maximum Amount, and (ii) the average outstanding
principal balance of the Loan during such month, due and payable by
the fifteenth (15 th ) day of the
following calendar month; provided , that the Unused Line
Fee will be waived for any calendar month where the average
outstanding principal balance of the Loan during such month exceeds
Forty Percent (40%) of the Maximum Amount. In addition, Borrower
shall, if any installment of interest and/or the payment of
principal is not received by Lender within 5 Business Days after
the due date thereof, then in addition to the remedies conferred
upon Lender pursuant to Section 9 hereof and the
other Loan Documents, Lender may elect to assess a late charge of
five percent (5%) of the amount of the installment due and unpaid,
which such late charge shall be added to the delinquent amount to
compensate Lender for the expense of handling the delinquency.
Borrower and Lender agree that such late charge represents a good
faith and fair and reasonable estimate of the probable cost to
Lender of such delinquency. Borrower acknowledges that during the
time that any such amount is in default, Lender shall incur losses
which are impracticable, costly and inconvenient to ascertain and
that such late charge represents a reasonable sum considering all
of the circumstances existing on the Effective Date of this
Agreement and represents a reasonable estimate of the losses Lender
shall incur by reason of late payment. Borrower further agrees that
proof of actual losses would be costly, inconvenient, impracticable
and extremely difficult to fix. Acceptance of such late charge
shall not constitute a waiver of the default with respect to the
overdue installment, and shall not prevent Lender from exercising
any of the other rights and remedies available
hereunder.”
2.03 Amendment
Restatement of Section 7 Covenants . As of the
First Amendment Effective Date, Section 7.1(x)(ii) of the Loan
Agreement (Affirmative Covenants) is hereby amended and restated to
read in its entirety as follows:
“
7. 1(x)(ii) Marketing and Sales
Expenses . As of the last day of each calendar fiscal
quarter, commencing upon the First Amendment Effective Date,
Borrower will not permit the four quarter cumulative ratio of
Marketing and Sales Expenses to the Borrower’s vacation
interval sales as recorded on the Borrower’s financial
statements for the immedi
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