EXHIBIT 10.1
FIRST AMENDMENT TO LOAN AND SECURITY AGREEMENT
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AND PLEDGE AND SECURITY AGREEMENT
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This First Amendment to Loan and Security Agreement and Pledge and Security
Agreement ("Amendment") is entered into as of May 16, 1997, by and among
FOOTHILL CAPITAL CORPORATION, a California corporation ("Foothill"), on the one
hand, and NATIONAL AMERICAN CORPORATION, a Nevada corporation ("National
American"), THOUSAND TRAILS, INC., a Delaware corporation, f/k/a USTrails, Inc.,
a Nevada corporation, and New Thousand Trails, Inc., a Delaware corporation
("Thousand Trails"), and the other party borrowers signatory hereto (each,
together with National American and Thousand 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
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FACT ONE: Borrowers, or their predecessors in interest, one of which,
USTRAILS INC., a Nevada corporation ("USTrails") and Foothill have previously
entered into that certain Loan and Security Agreement, dated as of July 10, 1996
(the "Loan Agreement") and that certain Pledge and Security Agreement dated as
of July 10, 1996 ("Pledge Agreement").
FACT TWO: Pursuant to the terms of that certain Agreement and Plan of
Merger, dated as of October 1, 1996, by and between USTrails and New Thousand
Trails (the "Merger Agreement"), USTrails merged with and into New Thousand
Trails, with New Thousand Trails emerging as the surviving corporation.
FACT THREE: New Thousand Trails filed a Restated Certificate of
Incorporation whereby it changed its name to Thousand Trails, Inc..
FACT FOUR: Since the execution of the Loan Agreement and the Pledge
Agreement, one of Borrowers created an additional subsidiary to conduct a
portion of Borrowers' business operations, and that new entity shall become a
borrower hereunder.
FACT FIVE: Borrowers and Foothill desire to amend the Loan Agreement and
the Pledge Agreement to confirm the name changes and mergers and to otherwise
amend other provisions in the Loan Agreement and the Pledge Agreement for and on
the conditions herein.
A G R E E M E N T
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NOW, THEREFORE, Borrowers and Foothill hereby amend and supplement the Loan
Agreement and Pledge Agreement as follows:
DEFINITIONS. All initially capitalized terms used in this Amendment shall
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have the meanings given to them in the Loan Agreement unless specifically
defined herein.
AMENDMENT. All references in the Loan Agreement, the Pledge Agreement, and
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the Loan Documents to "USTRAILS, INC., a Nevada corporation", shall be amended
as of the date hereof to refer to Thousand Trails, Inc., a Delaware corporation.
The definition of Borrower in the Loan Agreement shall be amended to
include COAST FINANCIAL SERVICES, INC., a Delaware corporation.
Section 1.1 of the Loan Agreement shall be amended to include the following
new definition:
""Amendment Advances" means a single advance or multiple advances of up to
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Twelve Million Dollars ($12,000,000) to be made to Borrower pursuant to the
terms hereof to permit it to pay the principal portion of the cost of
repurchasing some or all of its PIK notes at a cost not to exceed par."
Section 1.1 of the Loan Agreement shall be further amended to include the
following new definition:
"Non-Revolving Portion" means the sum of Six Million Five Hundred Sixty-
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Five Thousand Dollars ($6,565,000) representing a portion of the advances made
pursuant to Section 3.1, which such sum is non-revolving and remains outstanding
until all of the Obligations are indefeasibly paid in full: The Non Revolving
Portion is evidenced by the Term Note."
Section 1.1 of the Loan Agreement shall be further amended by deleting the
definition of Revolving Maximum Amount and substituting the following in its
place and stead:
"Revolving Maximum Amount" means (a) Twenty Million Dollars ($20,000,000),
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which such amount is permanently reduced to lower amounts by the sum of: (i)
commencing on June 1, 1997, and on the first day of each and every month
thereafter, $150,000; and (ii) 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 May 17, 1997; 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:
On or after December 31, 1997 $ 3,750,000
On or after June 30, 1998 $ 7,500,000
On or after December 31, 1998 $11,250,000
On or after June 30, 1999 $15,000,000
Section 3.1(a) of the Loan Agreement is amended by adding the following
sentence at the end thereof: "In addition to making the Amendment Advances, in
accordance with the terms hereof, Foothill shall also make advances in an amount
which in the aggregate does not exceed
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Seven Hundred Fifty Thousand Dollars ($750,000), to permit Borrower to pay the
accrued and unpaid interest on the PIK notes which it repurchases at the time of
repurchase."
Section 3.1(b) of the Loan Agreement is amended by deleting the reference
to Thirty Five Million Dollars ($35,000,000) and substituting in its place and
stead the number Twenty-Six Million Five Hundred Sixty-Five Thousand Dollars
($26,565,000).
Section 3.1(b) of the Loan Agreement is further amended by adding the
following sentence at the end thereof: "Until such time as the Obligations have
been indefeasibly paid in full, the Non-Revolving Portion shall remain
outstanding during the term of the Loan Agreement."
The parenthetical clause in Section 3.3(c) of the Loan Agreement which
reads as follows: "(and shall earn interest thereon at the rate or rates paid
by Norwest Bank Minnesota, national association, from time to time on its
taxable money market fund)" is deleted in its entirety and the following
substituted in its place and stead:
"(and shall earn interest thereon at the rate set forth in Section 3.5
(a))".
Section 3.3(c) of the Loan Agreement is further amended by adding the
following sentence at the end thereof:
"As of May 15, 1997, Foothill was holding the sum of Five Million Five
Hundred Seventeen Thousand Three Hundred Thirty-Nine Dollars and 20/100 Cents
($5,517,339.20) pursuant to this Section 3.3(c)."
Section 3.5(a) of the Loan Agreement is deleted in its entirety and the
following substituted in its place and stead:
1. " Interest Rate. All Obligations shall bear interest, on the actual
Daily Balance, at a per annum rate of one and one half (1 1\2) percentage points
above the Reference Rate."
Section 3.5(b) of the Loan Agreement is deleted in its entirety and the
following substituted in its place and stead:
"(b) Default Rate. All Obligations shall bear interest, from and after
the occurrence and during the continuance of an Event of Default, at a per annum
rate equal to four and one half (4 1\2) percentage points above the Reference
Rate."
Section 3.8(e) of the Loan Agreement is deleted in its entirety.
Section 3.8(h) of the Loan Agreement is deleted in its entirety and the
following substituted in its place and stead:
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"(h) Servicing Fee. On the first day of each month during the term of
this Agreement, and thereafter so long as any Obligations are outstanding, a
servicing fee in an amount equal to Six Thousand Dollars ($6,000) per month."
Section 3.8 of the Loan Agreement is further amended by adding a new
section 3.8(i) that reads as follows:
"(i) Amendment Advance Fee. A funding fee equal to three-quarters of one
percent (.75%) of each Amendment Advance, which such sum shall be added to each
Amendment Advance (thereby possibly exceeding the Twelve Million Dollar
($12,000,000) limitation set forth in the Amendment Advance) and become a
portion of the Obligations."
The last sentence of Section 4.5 of the Loan Agreement is deleted in its
entirety.
There shall be added a new Section 4.8 to the Loan Agreement which reads as
follows:
"4.8. Conditions Precedent to the Amendment Advances to Borrower. The
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obligation of Foothill to make the Amendment Advances upon the request of
Borrower is subject to the fulfillment, to the satisfaction of Foothill and its
counsel, of each of the following conditions on or before the Closing Date:
The Closing Date shall occur on or before August 1, 1997;
Foothill shall have received amendments to the Mortgages, duly executed and
in recordable form, in form reasonably satisfactory to Foothill and its counsel;
The Amendments to Mortgages shall have been duly recorded in each of the
appropriate jurisdictions, or Foothill shall have received assurances from the
Title Company, including gap protection, with respect to any post funding
recordation of same;
Foothill shall have received assurances from Title Company regarding the
post-funding issuance of title insurance policies and or endorsements in form
reasonably satisfactory to Foothill and its counsel;
All other documents and legal matters in connection with the transactions
contemplated by this Amendment shall have been delivered or executed and shall
be in form and substance reasonably satisfactory to Foothill and its counsel.";
and
All Amendment Advances must be made on or before December 31, 1997 and to
the extent that there otherwise would be availability for such an advance; no
such advances will be made after December 31, 1997.
The provisions of Sections 8.4, 8.7, 8.8, 8.14 and 9.12 of the Loan
Agreement are waived to permit the repurchase of the PIK Notes on the terms
contemplated herein. This waiver is a one time waiver only, and Foothill shall
have to right to require future strict compliance with the provisions thereof.
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Schedule 5.4 to the Loan Agreement shall be deleted in its entirety and
replaced with Schedule 5.4 (5/97) attached hereto and incorporated by reference
hereby.
Exhibit A to the Pledge Agreement shall be deleted in its entirety and
replaced with Schedule A (5/97) attached hereto and incorporated by reference
hereby.
REPRESENTATIONS AND WARRANTIES. Borrower hereby affirms to Foothill that
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all of Borrower's representations and warranties set forth in the Loan Agreement
and the Pledge 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).
NO DEFAULTS. Borrower hereby affirms to Foothill that no Event of Default
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has occurred and is continuing as of the date hereof.
CONDITION PRECEDENT. The effectiveness of this Amendment is expressly
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conditioned upon receipt by Foothill of an executed copy of this Amendment.
LIMITED EFFECT. In the event of a conflict between the terms and
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provisions of this Amendment and the terms and provisions of the Loan Agreement
and the Pledge Agreement, the terms and provisions of this Amendment shall
govern. In all other respects, the Loan Agreement and Pledge Agreement, as
amended and supplemented hereby, shall remain in full force and effect.
COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any number
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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.
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:
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Title:
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"BORROWERS"
NATIONAL AMERICAN CORPORATION,
a Nevada corporation
By:
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Title:
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THOUSAND TRAILS, INC.,
a Delaware corporation, f/k/a USTrails, Inc., a
Nevada corporation, and New Thousand Trails, Inc.,
a Delaware corporation
By:
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Title:
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THOUSAND TRAILS (CANADA) INC.,
a British Columbian corporation
By:
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Title:
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TT OFFSHORE, LTD.,
a Virginia corporation
By:
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Title:
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BEECH MOUNTAIN LAKES CORPORATION,
a Pennsylvania corporation
By:
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Title:
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CAROLINA LANDING CORPORATION,
a South Carolina corporation
By:
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Title:
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CARRIAGE MANOR CORPORATION,
a North Carolina corporation
By:
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Title:
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CHEROKEE LANDING CORPORATION,
a Tennessee corporation
By:
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Title:
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CHIEF CREEK CORPORATION,
a Tennessee corporation
By:
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Title:
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COAST FINANCIAL SERVICES, INC.,
a Delaware corporation
By:
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Title:
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DIXIE RESORT CORPORATION,
a Mississippi corporation
By:
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Title:
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FOXWOOD CORPORATION,
a South Carolina corporation
By:
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Title:
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GL LAND DEVELOPMENT CORPORATION,
an Oklahoma corporation
By:
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Title:
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LAKE ROYALE CORPORATION,
a North Carolina corporation
By:
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Title:
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LAKE TANSI VILLAGE, INC.,
a Tennessee corporation
By:
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Title:
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LML RESORT CORPORATION,
an Alabama corporation
By:
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Title:
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NATCHEZ TRACE WILDERNESS PRESERVE CORPORATION,
a Tennessee corporation
By:
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Title:
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QUAIL HOLLOW PLANTATION CORPORATION,
a Tennessee corporation
By:
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Title:
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QUAIL HOLLOW VILLAGE, INC.,
a Pennsylvania corporation
By:
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Title:
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RECREATION LAND CORPORATION,
a Pennsylvania corporation
By:
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Title:
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RECREATION PROPERTIES, INC.,
a Mississippi corporation
By:
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Title:
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RESORT LAND CORPORATION,
an Arkansas corporation
By:
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Title:
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RESORT PARKS INTERNATIONAL, INC., f/k/a Shorewood
Corporation,
a Georgia corporation
By:
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Title:
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TANSI RESORT, INC.,
a Tennessee corporation
By:
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Title:
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THE KINSTON CORPORATION,
a South Carolina corporation
By:
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Title:
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THE VILLAS OF HICKORY HILLS, INC.,
a Mississippi corporation
By:
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Title:
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WESTERN FUN CORPORATION,
a Texas corporation
By:
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Title:
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WESTWIND MANOR CORPORATION,
a Texas corporation
By:
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Title:
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WOLF RUN MANOR CORPORATION,
a Pennsylvania corporation
By:
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Title:
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UST WILDERNESS MANAGEMENT CORPORATION,
a Nevada corporation
By:
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Title:
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SCHEDULE 5.4 (5/97)
SCHEDULE OF REAL PROPERTY TO BE SOLD
MINIMUM NET
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ASSET PROCEEDS OF SALE
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NON-SYSTEM CAMPGROUNDS*
Anza Xxxxxxx $ 500,000
SYSTEM CAMPGROUNDS*
Bay Landing $1,328,000
Black Point 1,576,000
Carolina Landing 768,000
Cherokee Landing 456,000
Chestnut Lake 560,000
Colorado River 464,000
Fox River 1,210,000
Galveston 384,000
Indian Point 904,000
Jefferson Lake 880,000
Kenisee Lake 454,400
Natchez Trace **
Wilmington 584,000
*80% of values from current appraisals (except for Anza Xxxxxxx)
**appraised value from new appraisal to be obtained, less expenses of sale, with
minimum net sale proceeds to be approved by Foothill
EXCESS ACREAGE ASSOCIATED WITH CAMPGROUNDS
Palm Springs Acreage* $1,800,000
Lake of the Springs Acreage 176,000
Mount Xxxxxx Acreage 320,000
Wilderness Lakes Acreage 460,000
*Less unpaid balance of Xxxxxx/Xxxxxx mortgage
RESORT ASSETS
ALPINE BAY
Whole unit condos (2) $ 28,000 each
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BEECH MOUNTAIN
Acreage (approx. 1,600 acres) $ 800,000
Common amenities to be conveyed to property owners association
Lake -0-
Clubhouse -0-
Campground -0-
Guardhouse -0-
Laundry Facility -0-
FOXWOOD
Acreage (approximately 19 acres) $ 12,258
Old sales office 60,000
HICKORY HILLS
Rental townhomes $ 400,000
Existing units (6)
Sites for future development of 28 units
LAKE ROYALE
Whole unit condos (6) $ 28,000 each
LAKE TANSI
Laundromat $ 10,000
Acreage (approx. 3 acres) $ 3,000
SOUTH JETTY
Sales Office $ 420,000
TREASURE LAKE
Whole unit condos (3) $ 32,000 each
Timeshare check-in facility 100,000
Acreage (approx. 100 acres) 40,000
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WESTWIND MANOR
Whole unit condos (7) $ 28,000 each
MISCELLANEOUS PROPERTIES
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Acreage, Jefferson County, WA $ 20,000
One lot, Xxxxxx County, WA -0-
One lot, Xxxxx County, WA -0-
One lot, Xxxxxx Xxxxxx, XX -0-
Xxx xxx, Xxxxxxx Xxxxxx, XX -0-
17 lots, Smoketree, OK -0-
Xxx xxx, Xxxxx Xxxxx, XX -0-
24 lots, Xxxxx Xxxxx, AK -0-
38 lots, Lake Wynoka, OH -0-
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EXHIBIT A (5/97)
STOCK
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STOCK NO.
CERTIFICATE OF
NAME OF COMPANY NO. SHARES STOCKHOLDER
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I. Resort Parks 2 5 Thousand Trails, Inc.,
International, Inc. f/k/a f/k/a/ USTrails and New
Shorewood Corporation Thousand Trails
II. National American 4 1,000 Thousand Trails, Inc.,
Corporation f/k/a/ Naco Finance
Corporation, USTrails and
New Thousand Trails
III. UST Wilderness 1 100,000 Thousand Trails, Inc.,
Management f/k/a/ USTrails and New
Thousand Trails
IV. Thousand Trails 2 1 Thousand Trails, Inc.,
(Canada), Inc. f/k/a/ Thousand Trails
Inc., USTrails, and New
Thousand Trails
V. TT Offshore, Ltd. 4 4,000 Thousand Trails, Inc.,
f/k/a/ Thousand Trails
Inc., USTrails, and New
Thousand Trails
VI. TT Offshore, Ltd. 3 6,000 Thousand Trails, Inc.,
f/k/a/ Thousand Trails
Inc., USTrails, and New
Thousand Trails
VII. Coast Financial 1 1,000 Thousand Trails, Inc.
Services, Inc.
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