EXHIBIT 4.10
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 20, 1996 (the
"Supplement"), by and among THOUSAND TRAILS, INC., a Delaware corporation
formerly called New Thousand Trails, Inc. (the "Successor"), each Subsidiary of
the Successor named herein (the "Subsidiary Guarantors"), and FLEET NATIONAL
BANK, as Trustee (the "Trustee") under the Indenture, dated as of July 17, 1996
(the "Indenture"), of USTRAILS INC., a Nevada corporation (the "Issuer").
RECITALS OF THE SUCCESSOR
The Issuer, the Subsidiary Guarantors named therein and the Trustee have
heretofore entered into the Indenture to provide for the issuance of the
Issuer's Senior Subordinated Pay-In-Kind Notes Due 2003 (the "Notes").
Pursuant to an Agreement and Plan of Merger, dated as of October 1, 1996,
between the Issuer and the Successor, the Issuer has been merged into the
Successor (the "Merger") at the effective time of the Merger on the date hereof
(the "Effective Time").
All things necessary to make the Notes issued under the Indenture (as
hereby supplemented) the valid obligations of the Successor and to make the
Indenture (as hereby supplemented) and the other Note Documents valid agreements
of the Successor, in accordance with their respective terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH:
In order to comply with the requirements of the Indenture, the Successor
and the Subsidiary Guarantors covenant and agree with the Trustee for the equal
and proportionate benefit of the Holders of the Notes as follows:
ARTICLE ONE
ASSUMPTION BY THE SUCCESSOR
Section 101. The Successor hereby represents and warrants to the Trustee
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and to the Holders of the Notes as follows:
(a) The Successor is a corporation organized and existing under the
laws of Delaware.
(b) Immediately prior to the effective time of the Merger, the
Successor was a wholly-owned Subsidiary of the Issuer.
(c) At the effective time of the Merger on the date hereof, the Issuer
has been merged into the Successor, which is the continuing entity in the
Merger.
(d) Immediately after giving effect to the Merger, no Default or Event
of Default exists or has occurred and is continuing.
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(e) Immediately after giving effect to the Merger, on a pro forma
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basis, the Consolidated Net Worth of the Successor is at least equal to the
Consolidated Net Worth of the Issuer immediately prior to the Merger
(exclusive of any amounts paid or payable in respect of dissenters'
rights).
(f) The Subsidiary Guarantors constitute all of the Subsidiaries of the
Successor required to guarantee the Notes as provided in the Indenture.
Section 102. The Successor hereby covenants and agrees that it will duly
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and punctually pay or cause to be paid the principal of, and interest on, each
of the Notes at the place or places, at the respective times and in the manner
provided in the Notes and duly and punctually perform and observe all of the
covenants and conditions to be performed or observed by the Issuer under the
Indenture and the other Note Documents.
Section 103. The Successor shall succeed to and be substituted for the
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Issuer under the Indenture and the other Note Documents, with the same effect as
if it had been named as the Issuer therein.
Section 104. Notes authenticated and delivered on and after the date
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hereof shall bear the following notation which may be stamped or typewritten
thereon:
"On November __, 1996, USTrails Inc., a Nevada corporation, was
merged into Thousand Trails, Inc., a Delaware corporation formerly
called New Thousand Trails, Inc., which has assumed the due and
punctual payment of the principal of and interest on the Senior
Subordinated Pay-In-Kind Notes Due 2003 and the performance of every
covenant of the Indenture and the other Note Documents on the part of
USTrails Inc."
If the Successor shall so determine, new Notes so modified as to conform to
the Indenture as hereby supplemented, in form satisfactory to the Trustee, may
at any time hereafter be prepared and executed by the Successor and
authenticated and delivered by the Trustee in exchange for Notes then
Outstanding, and thereafter the notation hereby provided shall no longer be
required. Anything herein or in the Indenture or the other Note Documents to
the contrary notwithstanding, the failure to affix the notation herein provided
to any Note or to exchange any Note for a new Note modified as herein provided
shall not affect any of the rights of the Holder of such Note.
Section 105. Each of the Subsidiary Guarantors hereby consents to the
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Merger and confirms its obligations under the Subsidiary Guarantee from and
after the effective time of Merger.
ARTICLE TWO
MISCELLANEOUS
Section 201. Except as otherwise expressly provided or unless the context
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otherwise requires, all terms used herein which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 202. This Supplement shall be effective at the Effective Time.
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Section 203. The recitals contained herein shall be taken as the
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statements of the Successor, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Supplement.
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Section 204. This Supplement shall be governed by and construed in
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accordance with the laws of the jurisdiction which govern the Indenture and its
construction.
Section 205. This Supplement may be executed in any number of
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counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 206. Except as changed hereby, the terms, provisions, and
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conditions of the Indenture and the other Note Documents shall continue in full
force and effect after the effectiveness of the Merger.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to be
duly executed and delivered all as of the day and year first above written.
THOUSAND TRAILS, INC., a Delaware corporation
[Corporate Seal]
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
Attest:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx,
General Counsel and
Secretary
FLEET NATIONAL BANK, as Trustee
[Corporate Seal]
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Vice President
Attest:
/s/
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Title
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THOUSAND TRAILS (CANADA) INC., a
British Columbia corporation
TT OFFSHORE, LTD., a Virginia corporation
NATIONAL AMERICAN CORPORATION, a Nevada
corporation
LML RESORT CORPORATION, an Alabama corporation
RESORT LAND CORPORATION, an Arkansas corporation
LAKE TANSI VILLAGE, INC., a Delaware corporation
SHOREWOOD CORPORATION, a Georgia corporation
TANSI RESORT, INC., a Georgia corporation
INDIAN LAKES WILDERNESS PRESERVE CORPORATION, an
Indiana corporation
DIXIE RESORT CORPORATION, a Mississippi
corporation
RECREATION PROPERTIES, INC., a Mississippi
corporation
THE VILLAS OF HICKORY HILLS, INC., a Mississippi
corporation
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CARRIAGE MANOR CORPORATION, a North Carolina
corporation
LAKE ROYALE CORPORATION, a North Carolina
corporation
G L LAND DEVELOPMENT, INC., an Oklahoma
corporation
BEECH MOUNTAIN LAKES CORPORATION, a Pennsylvania
corporation
QUAIL HOLLOW VILLAGE, INC., a Pennsylvania
corporation
RECREATION LAND CORPORATION, a Pennsylvania
corporation
WOLF RUN MANOR CORP., a Pennsylvania corporation
CAROLINA LANDING CORPORATION, a South Carolina
corporation
FOXWOOD CORPORATION, a South Carolina corporation
THE KINSTON CORPORATION, a South Carolina
corporation
CHEROKEE LANDING CORPORATION, a Tennessee
corporation
CHIEF CREEK CORPORATION, a Tennessee corporation
NATCHEZ TRACE WILDERNESS PRESERVE CORPORATION, a
Tennessee corporation
QUAIL HOLLOW PLANTATION CORPORATION, a Tennessee
corporation
WESTERN FUN CORPORATION, a Texas corporation
WESTWIND MANOR CORPORATION, a Texas corporation
UST WILDERNESS MANAGEMENT CORPORATION, a Nevada
corporation
By /s/ Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
President
Attest:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
Secretary
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