EXHIBIT 10.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment") dated as
of July 1, 1996, is between NATIONAL AMERICAN CORPORATION, a Nevada corporation
("Borrower") and THOUSAND TRAILS, INC., a Delaware corporation and the successor
by merger to USTrails Inc., a Nevada corporation ("Lender").
WHEREAS, Borrower and Lender entered into a Credit Agreement, dated as
of December 31, 1991 (the "Original Credit Agreement");
WHEREAS, Borrower and Lender amended the Original Credit Agreement
pursuant to the First Amendment to Credit Agreement dated as of June 30, 1993,
and the Second Amendment to Credit Agreement dated as of November 10, 1994
(together with the Original Credit Agreement, the "Credit Agreement");
WHEREAS, Borrower and Lender wish to amend the Credit Agreement in
certain respects;
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants and agreements contained herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms not defined herein shall have the
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meaning ascribed to them in the Credit Agreement.
2. Amendment of Section 1.01.30. Section 1.01.30 of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
"Section 1.01.30 "MATURITY DATE" means the earlier of December 31,
1999, or the date the Term Loan shall become due and payable pursuant to
Section 6.01.
3. Amendment of Section 1.01.42. Section 1.01.42 of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
1.01.42 "TERMINATION DATE" means the earliest of December 31, 1999,
or the date of termination in whole of the commitment to make Revolving
Credit Loans pursuant to Section 2.03 or Section 6.01.
4. Amendment of Section 2.05(a). Section 2.05(a) of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
(a) REVOLVING CREDIT LOANS AND TERM LOAN. Subject to Section
2.05(b), during such periods as Revolving Credit Loans and Term Loan shall
be outstanding, effective as of July 1, 1996, a rate per annum equal at all
times to the lesser of (i) nine per cent (9%) per annum, or (ii) the
Highest Lawful Rate.
5. Substitution of Notes.
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(a) Concurrently with the execution of this Amendment, Borrower shall
execute a promissory note in the form attached hereto as Exhibit A (the "New
Revolving Credit Note"), which shall renew, restate and extend, and shall not
extinguish, the entire unpaid principal balance of the Revolving Credit Note.
Upon delivery to Lender of the
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New Revolving Credit Note duly executed by Borrower, Lender shall deliver the
New Revolving Credit Note as collateral to Foothill Capital Corporation
("Foothill"), and request Foothill to cancel the current Revolving Credit Note,
and the New Revolving Credit Note shall become the Revolving Credit Note, as
such term is defined in the Credit Agreement.
(b) Concurrently with the execution of this Amendment, Borrower shall
execute a promissory note in the form attached hereto as Exhibit B (the "New
Term Loan Note"), which shall renew, restate and extend, and shall not
extinguish, the entire unpaid principal balance of the Term Loan Note. Upon
delivery to Lender of the New Term Loan Note duly executed by Borrower, Lender
shall deliver the New Term Loan Note as collateral to Foothill Capital
Corporation ("Foothill"), and request Foothill to cancel the current Term Loan
Note, and the New Term Loan Note shall become the Term Loan Note, as such term
is defined in the Credit Agreement.
6. Amendment of Loan Documents and Further Assurances. If requested
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by Lender, Borrower shall execute and deliver such documents and other
instruments, and make such filings and take such action, including amendment of
the Mortgages and other Loan Documents to secure Borrower's obligations under
the Credit Agreement as amended hereby and to ratify and confirm the liens and
security interests granted by the other Loan Documents.
7. Amounts Presently Outstanding. Borrower hereby acknowledges and
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agrees that, as of July 1, 1996, the principal amount outstanding (i) under the
Revolving Credit Loans was $18,241,711.98, and (ii) under the Term Loan was
$10,765,000.
8. Effect on the Loan Documents. Except as expressly amended or
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modified by this Amendment, the Credit Agreement and the other Loan Documents
are in all respects ratified and confirmed and all terms, conditions and
provisions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect.
9. Execution in Counterparts. This Amendment may be executed in
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counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
10. Headings. The section headings herein are for convenience only
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and shall not affect the construction hereof.
11. Binding Effect. This Amendment shall be binding upon and inure
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to the benefit of the Borrower and Lender and their respective successors and
assigns.
12. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED
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AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, REGARDLESS OF
THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER THE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
13. FINAL AGREEMENT OF THE PARTIES. THIS AMENDMENT, TOGETHER WITH
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THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, CONSTITUTES A "LOAN
AGREEMENT" FOR THE PURPOSES OF SECTION 26.02(A) OF THE TEXAS BUSINESS AND
COMMERCE CODE, AND REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
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SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO ORAL AGREEMENTS BETWEEN
THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first written above.
BORROWER: NATIONAL AMERICAN CORPORATION
By: s/Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Vice President
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LENDER: THOUSAND TRAILS, INC.
By: s/Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Vice President
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ACKNOWLEDGED:
FOOTHILL CAPITAL CORPORATION,
as assignee of the indebtedness owed to
Lender under the Credit Agreement
By: s/Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Assistant Vice President
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ACCEPTED AND AGREED TO WITH
RESPECT TO THE GUARANTY AND
SECURITY AGREEMENT, AS OF THE
DATE FIRST ABOVE WRITTEN.
SUBSIDIARIES:
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BEECH MOUNTAIN LAKES CORPORATION
CAROLINA LANDING CORPORATION
CARRIAGE MANOR CORPORATION
CHEROKEE LANDING CORPORATION
CHIEF CREEK CORPORATION
DIXIE RESORT CORPORATION
FOXWOOD CORPORATION
G L LAND DEVELOPMENT, INC.
LAKE ROYALE CORPORATION
LAKE TANSI CORPORATION
LML RESORT CORPORATION
NATCHEZ TRACE WILDERNESS PRESERVE CORPORATION
QUAIL HOLLOW PLANTATION CORPORATION
QUAIL HOLLOW VILLAGE, INC.
RECREATION LAND CORPORATION
RECREATION PROPERTIES, INC.
RESORT LAND CORPORATION
TANSI RESORT, INC.
THE KINSTON CORPORATION
THE VILLAS OF HICKORY HILLS, INC.
WESTERN FUND CORPORATION
WESTWIND MANOR CORPORATION
WOLF RUN MANOR CORPORATION
By: s/Xxxxx X. Xxxxx, Xx.
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Name: Xxxxx X. Xxxxx, Xx.
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Title: Vice President
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EXHIBIT A
AMENDED AND RESTATED REVOLVING CREDIT NOTE
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$40,000,000 Dated: July 1, 1996
FOR VALUE RECEIVED, the undersigned, NATIONAL AMERICAN CORPORATION, a
Nevada corporation ( "Borrower"), hereby promises to pay to the order of
THOUSAND TRAILS, INC., a Delaware corporation and the successor by merger to
USTRAILS INC. ("Lender"), the principal sum of FORTY MILLION DOLLARS
($40,000,000) or, if less, the aggregate principal amount as may from time to
time be outstanding of the Revolving Advances (as hereinafter defined) made by
the Lender to the Borrower pursuant to the Credit Agreement (as hereinafter
defined) on the terms and in the amounts as set forth in the Credit Agreement
together with interest on the unpaid principal balance of each Revolving Advance
from the date of such Advance until said principal amount is paid in full. On
the Termination Date, the Borrower shall repay in full all then outstanding
obligations under the Loans including the principal amount of all then
outstanding Revolving Credit Loans. The Borrower shall pay interest on the
unpaid principal amount of this Revolving Credit Note, from the date hereof
until such principal amount shall be paid in full, at the following rates per
annum, payable monthly in arrears on the last day of each month, and on the date
principal is due, whether at stated maturity, on acceleration or otherwise
(provided that interest on any past due payment shall be payable on demand): a
rate per annum equal at all times to (x) the lesser of (i) nine percent (9%) per
annum, or (ii) the Highest Lawful Rate: provided, however, upon the occurrence
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and during the continuance of an Event of Default, interest on all outstanding
Revolving Credit Loans shall instead accrue at a rate per annum equal at all
times to (y) the lesser of (i) the Highest Lawful Rate and (ii) 2% per annum
above the rate per annum otherwise required to be paid on such Revolving
Advances pursuant to clause (x) above.
This Revolving Credit Note renews, restates and extends, and does not
extinguish, indebtedness in the amount of $18,241,711.98 representing the entire
unpaid principal balance under the Revolving Credit Note dated November 10, 1994
(the "1994 Credit Note"), made by Borrower in favor of Lender in the original
principal amount of $40,000,000.
This Revolving Credit Note shall constitute the Revolving Credit Note
referred to in, and is entitled to the benefits of and obligations pertaining
to, the Credit Agreement dated as of December 31, 1991 (as amended, the "Credit
Agreement"), between Borrower and Lender, and all liens, assignments and
security interests in connection therewith.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, in same day funds. Each Revolving Advance made by Lender to Borrower
pursuant to the Credit Agreement and all payments made on account of principal
hereof shall be recorded by Lender and, prior to any transfer hereof, endorsed
on the grid attached hereto which is part of this Revolving Credit Note.
Borrower hereby waives presentment, notice of dishonor and protest.
The Credit Agreement, among other things, (i) provides for the making
of advances (the "Revolving Advances") by Lender to Borrower from time to time
in an aggregate amount not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of Borrower resulting from each
such Revolving Advance being evidenced by this Revolving Credit Note, (ii)
contains provisions for acceleration of
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the maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified, and (iii) provides that the obligations
of Borrower under the Credit Agreement, including obligations under this Note,
are secured by the Guaranty, the Security Agreement, the Mortgages and the other
Loan Documents (other than this Note and the Term Loan Note), which are hereby
ratified, confirmed, brought forward, renewed, extended and rearranged, as
security for the payment of this Amended and Restated Revolving Credit Note, in
addition to and cumulative of all other security for this Note. All terms not
expressly defined herein shall have the same definitions as set forth in the
Credit Agreement.
The validity, meaning, enforceability and effect of this Revolving
Credit Note shall be governed by the laws of the State of Texas.
NATIONAL AMERICAN CORPORATION
By: ___________________________________
Its: _________________________________
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REVOLVING CREDIT NOTE (Cont'd)
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Notation
Date Loan Repaid Made By
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7/1/96 $18,241,711.98
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EXHIBIT B
AMENDED AND RESTATED TERM LOAN NOTE
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10,765,000 Dated: July 1, 1996
FOR VALUE RECEIVED, the undersigned, NATIONAL AMERICAN CORPORATION, a
Nevada corporation (the "Borrower"), hereby promises to pay to the order of
THOUSAND TRAILS, INC., a Delaware corporation corporation and the successor by
merger to USTRAILS INC. (the "Lender"), the principal amount of Ten Million
Seven Hundred Sixty Five Thousand Dollars ($10,765,000) pursuant to and in
accordance with the terms of the Credit Agreement (as hereinafter defined)
together with interest on the unpaid principal balance of this Term Loan Note
from the date hereof until said principal amount is paid in full. The Borrower
shall repay the outstanding principal amount of the Term Loan on the Maturity
Date. The Borrower shall pay interest on the unpaid principal amount of this
Term Loan Note, from the date hereof until such principal amount shall be paid
in full, at the following rates per annum, payable monthly in arrears on the
last day of each month, and on the date principal is due, whether at stated
maturity, on acceleration or otherwise (provided that interest on any past due
payment shall be payable on demand): a rate per annum equal at all times to (x)
the lesser of (i) nine per cent (9%) per annum, or (ii) the Highest Lawful Rate;
provided, however, upon the occurrence and during the continuance of an Event of
Default, interest on all outstanding principal shall instead accrue at a rate
per annum equal at all times to (y) the lesser of (i) the Highest Lawful Rate
and (ii) 2% per annum above the rate per annum otherwise required to be paid on
such principal amount pursuant to clause (x) above.
This Term Loan Note renews, restates and extends, and does not
extinguish, indebtedness in the amount of $10,765,000 representing the entire
unpaid principal amount of the Term Loan Note dated November 10, 1994 (the "1994
Term Note"), made by Borrower in favor of Lender in the original principal
amount of $10,765,000.
This Term Loan Note shall constitute the Term Loan Note referred to
in, and is entitled to the benefits of and subject to the obligations provided
in, the Credit Agreement dated as of December 31, 1991 (as amended, the "Credit
Agreement") between Borrower and Lender, and all liens, assignments and security
interests in connection therewith.
Both principal and interest are payable in lawful money of the United
States of America to the Lender at 0000 XXX Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, in same day funds.
Borrower hereby waives presentment, notice of dishonor and protest.
The Credit Agreement, among other things, (i) contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to the maturity
hereof upon the terms and conditions therein specified, and (ii) provides that
the obligations of Borrower under the Credit Agreement, including obligations
under this Note, are secured by the Guaranty, the Security Agreement, the
Mortgages and the other Loan Documents (other than this Note and the Revolving
Credit Note), which are hereby ratified, confirmed, brought forward, renewed,
extended and rearranged, as security for the payment of this Amended and
Restated Term Loan Note, in addition to and cumulative of all other security for
this Note. All terms not expressly defined herein shall have the same
definitions as set forth in the Credit Agreement.
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The validity, meaning, enforceability and effect of this Term Loan
Note shall be governed by the laws of the State of Texas.
NATIONAL AMERICAN CORPORATION
By: __________________________________
Its: ________________________________
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