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EXHIBIT 10.2
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
This Sixth Amendment to Loan and Security Agreement
("Amendment") is entered into as of October 21, 1998, by and among FOOTHILL
CAPITAL CORPORATION, a California corporation ("Foothill"), on the one hand, and
NATIONAL AMERICAN CORPORATION, a Nevada corporation ("NACO"), THOUSAND TRAILS,
INC., a Delaware corporation ("Trails"), and the other party borrowers signatory
hereto (each, together with NACO and Trails, individually a "Borrower" and
collectively, jointly and severally, "Borrowers"), on the other hand, in light
of the following:
R E C I T A L S
FACT ONE: Borrowers, or their predecessors in interest, and
Foothill have previously entered into that certain Loan and Security Agreement,
dated as of July 10, 1996 (as amended and modified, the "Loan Agreement").
FACT TWO: Borrowers have requested that Foothill modify its
previous consent to allow Borrowers to purchase additional PIK Notes and to
provide a working capital line of credit which Borrower shall not be required to
repay until January 17, 2003.
FACT THREE: Borrowers and Foothill desire to amend the Loan
Agreement as provided for herein.
A G R E E M E N T
NOW, THEREFORE, Borrowers and Foothill hereby amend and
supplement the Loan Agreement as follows:
1. DEFINITIONS. All initially capitalized terms used in
this Amendment shall have the meanings given to them in the Loan Agreement
unless specifically defined herein.
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2. AMENDMENT.
2.1 Section 1.1 of the Loan Agreement is hereby
amended by deleting the definition of Revolving Maximum Amount and substituting
the following in its place and stead:
"Revolving Maximum Amount" means Thirty-Five Million Dollars
($35,000,000), which such amount is permanently reduced to lower
amounts by the greater of (y) the sum of (1) an amount equal to the
aggregate net cash proceeds of all sales of Collateral pursuant to
Section 5.4 (other than the last paragraph thereof), or as otherwise
approved by Foothill, which occur after June 10, 1998; plus (2) 100% of
Account collections, once the Term Note has been fully secured by cash;
or (z) the amount set forth below opposite the applicable date of
reduction:
6/30/1999 - $4,500,000
12/31/1999 - $9,000,000
6/30/2000 - $13,500,000
7/15/2000 - $35,000,000; provided that if Borrower has paid in
full or otherwise retired all PIK Notes by July 15,
2000, the reduction scheduled for such date shall
not occur and the following amounts shall apply on
the following dates of reduction:
12/31/2000 - $18,000,000
6/30/2001 - $22,500,000
12/31/2001 - $27,000,000
6/30/2002 - $31,500,000
1/17/2003 - $35,000,000:
Provided, however, there shall be no reductions in the Revolving
Maximum Amount as called for in provisions (y)(1) and (2) called for
above for any sales or collections which occur between June 10, 1998
and the earlier to occur of the following: (i) the completion of the
purchase by Borrower of the PIK Notes, or (ii) the purchase of the
stock of AIC, or (iii) March 31, 1999.
2.2 Section 4.3 of the Loan Agreement is hereby
amended so that the term ends on January 17, 2003 instead of July 17, 2002 as is
currently provided for in the Loan Agreement.
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2.3 Section 4.8(b) of the Loan Agreement is hereby
amended to change the date therein from September 12, 1998 to March 31, 1999.
2.4 The following shall be added to the end of
Section 8.13 of the Loan Agreement: "Commencing with the first $4,500,000
reduction in the Revolving Maximum Amount, as required in the definition
thereof, Borrower shall be able to cumulate the $50,000 monthly cap on
repurchases of its own stock, so that any unused allowed sums can be carried
over into successive months, with a maximum carryover allowed amount of
$250,000. Thereafter, with each $4,500,000 reduction in the Revolving Maximum
Amount, the carry-over cap shall increase by an additional $250,000 for each
such $4,500,000 reduction, until the maximum carry-over amount is $1,000,000."
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms
to Foothill that all of Borrower's representations and warranties set forth in
the Loan Agreement are true, complete and accurate in all material respects as
of the date hereof (except to the extent that such representations and
warranties relate solely to an earlier date).
4. NO DEFAULTS. Borrower hereby affirms to Foothill that
no Event of Default has occurred and is continuing as of the date hereof.
5. CONDITION PRECEDENT. The effectiveness of this
Amendment is expressly conditioned upon receipt by Foothill of an executed copy
of this Amendment and the fulfillment, to the satisfaction of Foothill and
Foothill's counsel, of each of the following conditions precedent:
5.1 Borrower shall execute and have recorded in the
appropriate county amendments to mortgages/deeds of trust on all of the real
property which secures the Loan Agreement. The form of all of the documents
required in this section shall be comparable to the documents that Borrower has
already executed in the past related to amendments to mortgages/deeds of trust
and new mortgages/deeds of trust.
5.2 Foothill obtains title insurance endorsements
on real property included within 10 existing policies of title insurance
(evidencing no further encumbrances or liens), all in form and substance and in
amounts required by Foothill in its sole and absolute discretion. Foothill shall
determine which 10 policies of title insurance they will receive endorsements or
new policies. These may be the policies with the highest insured values.
Foothill shall obtain commitments for title insurance (but shall not purchase
new policies) for all of the properties located in Texas evidencing that there
exists no further encumbrances or liens from the date that Foothill received
policies of title insurance on such properties.
5.3 Each Borrower shall be a corporation in good
standing in the jurisdiction of its incorporation and qualified to do business
in any other jurisdiction where such qualification is required by law.
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5.4 Borrower and Foothill shall have entered into
an amendment to the security documents in form and substance reasonably
satisfactory to Foothill and Foothill's counsel containing usual and customary
provisions for a transaction of this type. All other documents and legal matters
in connection with this Amendment shall have been entered into and delivered,
consistent with (but not limited to) prior amendments to the Loan Agreement.
5.5 Foothill shall have received such opinions of
Borrower's counsel as Foothill shall reasonably require, which opinion(s) shall
be satisfactory to Foothill and its counsel as to both form and substance. Such
opinions shall include opinions as to Borrower's corporate existence, Borrower's
power and authority to enter into this Amendment and other documents and the
validity and binding effect of this Amendment and the other documents entered
into in connection herewith.
5.6 Borrower shall have paid to Foothill all of
Foothill's out-of-pocket expenses relating to this Amendment, including, but not
limited to, search fees, title search and insurance fees, filing and recording
fees, examination and appraisal fees, internal transaction charges, and
attorneys fees and expenses.
6. LIMITED EFFECT. In the event of a conflict between the
terms and provisions of this Amendment and the terms and provisions of the Loan
Agreement, the terms and provisions of this Amendment shall govern. In all other
respects, the Loan Agreement, as amended and supplemented hereby, shall remain
in full force and effect.
7. WAIVER. The waiver of certain provisions of the Loan
Agreement as provided in this Amendment which, inter alia, allows Borrower to
purchase the stock of AIC and to purchase PIK Notes shall constitute a one time
waiver only, and Foothill shall have the right to require strict compliance with
all of the provisions of the Loan Agreement in the future.
8. BROKERS' FEES. Any brokerage commission or finder's
fees payable in connection with the financing arrangement contemplated hereby
will be payable by Borrowers and not by Foothill. Borrowers and Foothill each
represent and warrant to the other that they have not incurred any obligation
for a brokerage commission or a finder's fee. Borrowers hereby indemnify
Foothill and hold Foothill harmless from and against any claim of any broker or
finder arising out of the financing arrangement described above or any
commitment relating thereto.
9. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties on separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original. All such counterparts, taken together, shall constitute but one and
the same Amendment. This Amendment shall become effective upon the execution of
a counterpart of this Amendment by each of the parties hereto.
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10. COMPLETE AGREEMENT; NO ORAL MODIFICATIONS. This
Amendment embodies the entire agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior proposals, negotiations,
or agreements whether written or oral, relating to the subject matter hereof.
This Amendment may not be modified, amended, supplemented, or otherwise changed,
except by a document in writing signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment as of the date first set forth above.
"FOOTHILL"
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ Xxxx X. Xxxxxx
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Title: Assistant Vice President
"BORROWERS"
NATIONAL AMERICAN CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THOUSAND TRAILS, INC.,
a Delaware corporation, f/k/a USTrails, Inc.,
a Nevada corporation, and New Thousand Trails,
Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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THOUSAND TRAILS (CANADA) INC.,
a British Columbian corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
TT OFFSHORE, LTD,
a Virginia corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BEECH MOUNTAIN LAKES CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHEROKEE LANDING CORPORATION,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CHIEF CREEK CORPORATION,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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COAST FINANCIAL SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
DIXIE RESORT CORPORATION,
a Mississippi corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
FOXWOOD CORPORATION,
a South Carolina corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
GL LAND DEVELOPMENT CORPORATION,
an Oklahoma corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
LAKE ROYALE CORPORATION,
a North Carolina corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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LAKE TANSI VILLAGE, INC.,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
LML RESORT CORPORATION,
an Alabama corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
NATCHEZ TRACE WILDERNESS PRESERVE
CORPORATION, a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
QUAIL HOLLOW PLANTATION CORPORATION, a
Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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QUAIL HOLLOW VILLAGE, INC.,
a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
RECREATION LAND CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
RECREATION PROPERTIES, INC.,
a Mississippi corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
RESORT LAND CORPORATION,
an Arkansas corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
RESORT PARKS INTERNATIONAL, INC.,
a Georgia corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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TANSI RESORT, INC.,
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE KINSTON CORPORATION,
a South Carolina corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
THE VILLAS OF HICKORY HILLS, INC.,
a Mississippi corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
WESTERN FUN CORPORATION,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
WESTWIND MANOR CORPORATION,
a Texas corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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WOLF RUN MANOR CORPORATION,
a Pennsylvania corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
UST WILDERNESS MANAGEMENT CORPORATION,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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