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EXHIBIT 10.8
INVENTORY AND
DEVELOPMENT LOAN AND SECURITY AGREEMENT
This ("Agreement") dated as of October 9, 1996, is made by and between
SILVERLEAF VACATION CLUB, INC., a Texas corporation, and CONDOMINIUM BUILDERS,
INC., a Texas corporation (collectively, "BORROWER") whose address is 0000
Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, and CS FIRST BOSTON MORTGAGE CAPITAL
CORP., a Delaware corporation, whose address is 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000-0000 ("LENDER").
RECITALS:
Borrower has asked Lender to make Borrower an inventory and
development loan to finance its existing unsold inventory at certain resorts,
undeveloped acreage and golf course and additional land at another one of its
resorts; and
Borrower's obligations under the loan will be evidenced and secured by
the Loan Documents as hereinafter provided.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrower and Lender agree as follows:
SECTION I
DEFINITION OF TERMS
1.1 TERMS DEFINED. The following terms used in this Agreement
shall have the following meanings:
ACREAGE. Undeveloped tracts, lots and parcels of land in and around the
Ozark Mountain Resort, Stone County, Missouri and Holiday Hills Resort, Taney
County, Missouri.
ADVANCE. Proceeds of the Loan advanced by Lender to Borrower in
accordance with this Agreement.
AFFILIATE. (a) Any person or entity which has a financial interest in
Borrower; (b) any person or entity under common ownership with Borrower; (c)
any person or entity in which Borrower has a financial interest (any of (a),
(b) or (c) are referred to as a "Related Party"); (d) any person or entity
which has a financial interest in any Related Party; (e) any trust for the
benefit of Borrower or any Related Party; or (f) any person or entity in which
any Related Party has a financial interest.
BUSINESS DAY. Any day which is not a Saturday or Sunday or a legal
holiday under the laws of the State of New York or the United States.
CLOSING DATE. The date this Agreement is executed and delivered.
CODE. The Uniform Commercial Code as adopted and in force in the State
of New York as the same may be amended from time to time.
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COLLATERAL. Has the meaning assigned in Section 3.
COSTS. Shall have the meaning set forth in Section 10.3.
DECLARATION OR CONDOMINIUM DECLARATION. The Declaration recorded in
the real estate records where each Project is located for the purpose of adding
ownership of Units to the Condominium Program, as it may be in effect from time
to time.
DEED OF TRUST. That certain Deed of Trust and Security Agreement dated
of even date herewith from Borrower, as grantor, to the Trustee named therein,
in trust, for the benefit of Lender, in the form of Exhibit E attached hereto
and made a part hereof, as same may from time to time be renewed, amended,
restated or replaced.
DEFAULT RATE. A per annum rate of interest equal to the Interest Rate
plus four percent (4%).
DEVELOPMENT NOTE. The promissory note evidencing the Loan in the
original principal amount of $5,400,000 executed and delivered by Borrower to
Lender concurrently herewith in the form of Exhibit D attached hereto and made
a part hereof, as same may from time to time be renewed, amended, restated, or
replaced.
DISCLOSURE STATEMENT. A statement given to Purchasers describing the
Condominium Program.
ELIGIBLE UNSOLD UNITS. Each Unit satisfying all of the following
criteria:
(a) An existing unsold Unit in an applicable Condominium Project
that has been completed and developed in accordance with all
applicable building codes and furnished in a manner
substantially similar to the model unit, and for which a
certificate of occupancy has been obtained;
(b) All amenities and facilities (including, without limitation,
all utilities) for the applicable Condominium Project have
been completed, and all prospective Purchasers of such unsold
Unit would have uninterrupted use of all such amenities and
facilities;
(d) The unsold Unit is encumbered by the Deed of Trust and is not
subject to any lien not previously consented to by Lender.
ENVIRONMENTAL CERTIFICATE. An environmental certificate executed by
Borrower, and such other persons or parties as required by Lender, in form and
substance satisfactory to Lender, as it may be from time to time renewed,
amended, restated or replaced.
EVENT OF DEFAULT. Has the meaning set forth in Section 8 of this
Agreement.
FINANCED UNIT. Any Eligible Unsold Unit as to which an Advance has
been made and which is encumbered by the Deed of Trust and secures the Loan.
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GOLF COURSE. The golf course, including clubhouse and other customary
facilities and land to be developed at Holiday Hills Resort in Taney County,
Missouri.
HAZARDOUS MATERIALS. Any hazardous, dangerous or toxic substance or
material within the meaning of any federal, state or local law, regulation or
ordinance.
INDEBTEDNESS. Collectively, all payment obligations of Borrower to
Lender: (i) under the Note and other Loan Documents; and (ii) in connection with
the Revolving Receivables Loan from Lender to Borrower; together with any and
all other indebtedness of Borrower to Lender whether now existing or hereafter
arising.
INTEREST ONLY PERIOD. The eighteen (18) months after the Closing Date.
INTEREST RATE. A floating rate per annum equal to the Corporate Base
Rate plus two percent (2%) (the aggregate rate referred to as the "Interest
Rate"). "Corporate Base Rate" shall mean the interest rate last published by
The Wall Street Journal as the "Prime Rate" or if The Wall Street Journal
ceases to so publish, as so announced by Chase Manhattan Bank, N.A. Interest
shall be calculated based on a 360 day year and charged for the actual number
of days elapsed.
LOAN. The Five Million Four Hundred Thousand and OO/1OO Dollars
($5,400,000.00) development loan described in this Agreement.
LOAN DOCUMENTS. Collectively, this Agreement, the Note, the Deed of
Trust and any and all other agreements, documents, instruments and certificates
delivered or contemplated to be delivered in connection with this Agreement, as
such may be amended, renewed, extended, restated or supplemented from time to
time.
LOT. A parcel of land designated on a subdivision plat within the
Property.
MANDATORY PREPAYMENT. Any prepayment required by Section 2.5(b) of this
Agreement.
MASTER DEED(S). The Master Deeds whereby the Resorts were conveyed
from Freedom Financial Corporation, a Texas corporation, to Borrower:
(a) Warranty Deed dated May 31, 1989, and recorded in Book 194,
Page 854 of the Deed Records of Stone County, Missouri, and an
Assignment of Development Rights, Warranties, Service
Contracts, and Trade Name dated May 31, 1989, and recorded in
Book 135, Page 360 of the Deed Records of Stone County,
Missouri;
(b) Warranty Deed dated May 31, 1989, and recorded in Book 300,
Page 650 of the Recorder of Deeds of Taney County, Missouri,
and an Assignment of Development Rights, Warranties, Service
Contracts, and Trade Name dated May 31, 1989, and recorded in
Book 301, Page 331 of the Recorder of Deeds of Taney County,
Missouri;
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MATURITY DATE. October 9, 1999 or any earlier date on which the Loan
shall be required to be paid in full, whether by acceleration or otherwise.
PERMITTED EXCEPTIONS. The exceptions to title listed on Exhibit A.
PERSON. Natural persons, corporations, limited partnerships, general
partnerships, joint stock companies, joint ventures, associations, companies,
trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments and agencies and
political subdivisions thereof.
PROPERTY. Collectively, the Acreage, Golf Course and Resorts including
Units.
PURCHASE DOCUMENTS. Any purchase agreement and related sale and escrow
documents executed and delivered by a Purchaser to Borrower with respect to the
purchase of a Unit.
PURCHASER. Any Person who purchases one or more Units.
RESORTS. The vacation resorts legally described by the Master Deeds
and developed by Borrower which include the condominium units in Waters Bluff
subdivision at Ozark Mountain Resorts, Stone County, Missouri and condominium
units in Holiday Hills Resort, Taney County, Missouri.
REVOLVING RECEIVABLES LOAN. The $40,000,000 loan from Lender to
Borrower.
STONE COUNTY ACREAGE. The undeveloped property at the Ozark Mountain
Resort, Stone County, Missouri.
STRUCTURING ADVISORY FEE. A fee paid in consideration of advisory
services provided by Lender to Borrower with respect to the advice on the
method of financing in the amount of $54,000
TANEY COUNTY ACREAGE. The undeveloped property at the Holiday Hills
Resort, Taney County, Missouri.
CONDOMINIUM DOCUMENTS. Any and all document evidencing or relating to
the sale of Units by Borrower.
CONDOMINIUM PROGRAM. The program in which Purchasers have purchased
Units; owners of Units have the right to use and enjoy their respective Units;
fee simple and owners of Units share the expenses associated with the operation
and management of such program.
CONDOMINIUM PROJECT. The part of the Resorts which Lender currently
has approved, and may from time to time hereafter approve in writing, as being
subject to the sale of Units.
TITLE INSURER. Commonwealth Land Title Insurance Company, its
successors and assigns.
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TITLE INSURANCE POLICY. An American Land Title Association Loan
Policy, as last revised, issued to Lender by the Title Insurer in an amount not
less than $5,400,000, insuring that the Deed of Trust is a first lien upon the
"Property" (as said term is defined in the Deed of Trust) subject only to the
Permitted Exceptions. Said policy shall contain a Variable Rate Endorsement and
be in form and substance otherwise acceptable to Lender.
UNIT. One individual air space dwelling unit, together with all
furniture, fixtures and furnishings therein, and together with any and all
interest in common elements appurtenant thereto, as provided in the
Declaration.
SECTION 2
THE LOAN
2.1 LOAN. At the Closing, the Loan shall be advanced by Lender to
Borrower in a single payment subject to the provisions contained in this
Agreement and the other Loan Documents. In no event shall the Loan at any time
exceed $5,400,000. In no event shall the outstanding principal balance of the
Loan, at any time during the term of the Loan be less than $1,000.
2.2 TERM. The Loan shall be for a term of thirty-six (36) months
plus the number of days from the Closing Date to the end of the month in which
the Closing Date occurs.
2.3 INTEREST RATE. The average monthly balance of all outstanding
Advances together with all other outstanding obligations of Borrower shall bear
interest at the Interest Rate. After the occurrence of an Event of Default and
after the Maturity Date, the Loan will bear interest at the Default Rate.
2.4 PAYMENTS.
(a) MONTHLY PAYMENTS. Commencing on the first day of November,
1996, and for the Interest Only Period, Borrower shall pay interest
computed at the Interest Rate in arrears on the first day of each
month. Thereafter, Borrower shall make equal monthly payments of
principal and interest so as to fully amortize the Loan by the
Maturity Date. Interest shall be calculated based on a 360 day year
and charged for the actual number of days elapsed.
(b) FINAL PAYMENT. The entire outstanding principal amount of
the Loan, together with all accrued but unpaid interest, fees, and
charges, shall be payable on the Maturity Date.
2.5 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS. Borrower may prepay the Loan in
whole without premium upon five (5) days' prior written notice to
Lender or pursuant to the release provisions set forth in Section 2.6
hereof.
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(b) MANDATORY PREPAYMENTS. If Borrower receives any payment
with respect to the condemnation or lease of the property encumbered
by the Deed of Trust (other than rental payments and expense
reimbursements) including, without limitation, lease termination,
cancellation or similar fees, Borrower shall immediately prepay the
principal balance of the Loan in an amount equal to such payment. No
prepayment premium will be due with respect to any such prepayments.
Any mandatory prepayment shall be accompanied by an amount equal to
the interest accrued thereon to the date of receipt of such prepayment
in collected funds.
2.6 RELEASES OF COLLATERAL. Provided that no Event of Default
shall have occurred and be continuing, Lender agrees to release the Collateral
including Units and their appurtenant interests in the common elements from the
lien of the Deed of Trust, in accordance with and subject to all of the
following terms, provisions and conditions:
(a) Borrower shall request releases in writing not less than
five (5) business days prior to the date the release is needed. Each
request for release shall be submitted no more frequently than two (2)
times per month.
(b) Lender shall have received, with respect to each Unit,
Golf Course or Acreage to be sold or otherwise released: (i) a partial
release document prepared by Borrower at Borrower's expense in form
and content satisfactory to Lender; (ii) a schedule containing a list
of that Property previously released by Lender and that Property
remaining to be released; and (iii) all other data reasonably
necessary to support the Borrower's being entitled to the release,
including, without limitation, such other documents, certificates,
opinions and assurances as Lender may request, together with the legal
fees and disbursements of Lender's counsel incurred in connection with
the issuance of each such release.
(c) At the time of release, Borrower shall pay to Lender, in
cash or immediately available funds, a release price of an amount
equal to (i) seventy percent (70%) of the List Price as set forth on
Exhibit B attached hereto, and (ii) for the release of each of the
acreage, tracts, parcels, lots listed on Exhibits C-1 and C-2 attached
hereto, seventy percent (70%) of the value listed next to each
category of Property.
(d) Releases of Units, acreage or the Golf Course shall not
affect or impair the lien or security interest of the Deed of Trust
(or Lender's liens and security interests created by the other Loan
Documents) as to other Property (as defined in the Deed of Trust) not
theretofore released, and said liens and security interest shall
continue in full force and effect as to the unreleased Property and
such other Property.
SECTION 3
COLLATERAL
3.1 GRANT OF SECURITY INTEREST. To secure the payment and
performance of the Indebtedness, Borrower does hereby unconditionally and
irrevocably assign, pledge and grant to Lender a first priority continuing
security interest and lien in and to the right, title and interest
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of Borrower in the following property of Borrower, whether now owned or
existing or hereafter acquired regardless of where located (collectively, the
"COLLATERAL"):
(a) All unsold Units encumbered by the Deed of Trust which are
part of a CONDOMINIUM program offered at a Resort, together with all
security deposits, accounts, receivables, profits and proceeds contact
right, general intangibles, chattel paper, documents, instruments and
all books and records relating to the foregoing, from time to time
arising form the sale of such UNITS;
(b) Stone County Acreage and Taney County Acreage and Golf
Course.
(c) All other "Property", as said term is defined in the Deed
of Trust;
(d) All collateral now or hereafter securing the Revolving
Receivables Loan; and
(e) All proceeds, profits, extensions, additions,
improvements, betterments, renewals, substitutions and replacements of
the foregoing.
SECTION 4
CONDITIONS PRECEDENT TO ADVANCES
The obligation of Lender to make the Loan is subject to satisfaction
of all of the conditions set forth below.
4.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE. Lender shall have
received, as conditions precedent to the making of the initial Advance
hereunder, in form and substance satisfactory to Lender, all documents,
instruments and information identified on SCHEDULE 4.1 and all other agreements,
notes, certificates, orders, authorizations, financing statements, and other
documents which Lender may at any time reasonably request.
4.2 CONDITIONS PRECEDENT TO ADDITIONAL ADVANCES. As conditions
precedent to the making of each additional Advance hereunder, Borrower shall
have satisfied all of the conditions precedent for the making of the Initial
Loan, and all other conditions precedent for making Advances set forth in this
Agreement and in any other Loan Document.
4.3 SECURITY INTERESTS. Lender shall have received satisfactory
evidence that all security interests and liens granted to Lender pursuant to
this Agreement or the other Loan Documents have been duly perfected and
constitute first priority liens on the Collateral.
4.4 REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in the other Loan Documents shall be true,
correct and complete in all material respects on and as of the date of funding
of the Loan and any additional Advance except for any representation or warranty
limited by its terms to a specific date and taking into account any
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amendments to the Schedules or Exhibits as a result of any disclosures made by
Borrower to Lender after the Closing Date and approved by Lender.
4.5 NO DEFAULT. No Event of Default shall have occurred and no
condition shall exist which, but for notice or the passage of time, or both,
may result in an Event of Default in the Loan or the Revolving Receivables
Loan.
4.6 PERFORMANCE OF AGREEMENTS. Borrower shall have performed in
all material respects all agreements and satisfied all conditions which any
Loan Document provides shall be performed by it.
4.7 FEES AND EXPENSES. Borrower shall have paid all fees and
expenses required to be paid by Borrower pursuant to this Agreement.
SECTION 5
GENERAL REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Lender as follows, which
representations and warranties shall remain true throughout the term of this
Agreement:
5.1 ORGANIZATION, STANDING, QUALIFICATION. BORROWER EXISTENCE.
Borrower is, and will remain at all times, a corporation duly formed, validly
existing and in good standing under the laws of the State of Texas, with its
principal place of business at 0000 Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
Borrower is in good standing under the laws of the State of Missouri and is
authorized to transact business in the State of Missouri.
5.2 AUTHORIZATION AND ENFORCEABILITY.
(a) EXECUTION AND DELIVERY. The execution, delivery and
performance by Borrower of the Loan Documents has been duly authorized
by all necessary corporate action of Borrower, and does not and will
not (i) violate any provision of the Borrower's Articles of
Incorporation or Bylaws or any agreement, law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award
presently in effect to which Borrower is a party or is subject; (ii)
result in, or require the creation or imposition of, any lien upon or
with respect to any asset of Borrower other than liens and security
interests in favor of Lender; or (iii) result in a breach of, or
constitute a default by Borrower under, any indenture, loan or credit
agreement or any other agreement, document, instrument or certificate
to which Borrower is a party or by which it or any of its assets are
bound or affected.
(b) NO OTHER APPROVALS. No approval, authorization, order,
license, permit, franchise or consent of, or registration,
declaration, qualification or filing with, any governmental authority
is required in connection with the execution, delivery and performance
by Borrower of any of the Loan Documents, except for such filings as
are contemplated by the Loan Documents.
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(c) VALIDITY OF DOCUMENTS. The Loan Documents have been duly
authorized and, when duly executed and delivered by Borrower, will
constitute legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other similar
laws now or hereafter in effect which relate to or affect the
enforceability of creditors' rights generally and by general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
5.3 TITLE TO PROPERTIES: PRIOR LIENS. Borrower has good and
marketable title to the Property. Borrower is not in default under any of the
documents evidencing or securing any indebtedness which is secured, wholly or
in part, by any Property, and no event has occurred which with the giving of
notice, the passage of time or both, would constitute a default under any of
the documents evidencing or securing any such indebtedness. There are no liens
or encumbrances against any of the Property other than the Permitted
Exceptions.
5.4 LITIGATION AND PROCEEDINGS. There are no actions, suits,
proceedings, orders or injunctions pending or, to the best of Borrower's
knowledge, threatened against or affecting Borrower, at law or in equity, or
before or by any governmental authority, which could have a material adverse
effect on Borrower or relate to the Loan or to any of the Property. Borrower
has received no notice from any court or governmental authority alleging that
Borrower has violated any applicable condominium act, any of the rules or
regulations thereunder, or any other applicable laws.
5.5 LICENSES AND PERMITS. Borrower possesses all requisite
franchises, certificates of convenience and necessity, operating rights,
licenses, permits, consents, authorizations, exemptions and orders as are
necessary to carry on its business as now being conducted.
5.6 ENVIRONMENTAL MATTERS. No part of the Property contains any
Hazardous Materials. Neither Borrower nor any of the Resorts have received
notice from any governmental agency, entity or other person with regard to
Hazardous Materials on or affecting any Property; neither Borrower nor any
Resort, or any portion thereof, are in violation of any applicable federal,
state, or local environmental or health laws relating to or affecting the
Property or Borrower. No Unit contains asbestos.
5.7 FULL DISCLOSURE. No information, exhibit or written report
furnished by or on behalf of Borrower to Lender in connection with the Loan
contains any material misstatement of fact or omits any material fact necessary
to make the statement contained herein or therein not misleading. Borrower
knows of no legal or contractual restriction which will prevent it from
offering or selling Units to Purchasers in any state where it is selling Units.
5.8 MARGIN REGULATIONS. The proceeds from the Loan to be evidenced
by the Note will be used to finance Borrower's existing unsold Units at certain
Resorts and to provide funds for the development of the Golf Course and
undeveloped property at such Resorts. None of the transactions contemplated in
the Agreement (including, without limitation, the use of the proceeds from the
Loan) will violate or result in the violation of Section 7 of the Securities
Exchange Act of 1934, as amended, or any regulations issued pursuant thereto,
including,
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without limitation, Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter 11.
5.9 NO DEFAULTS. No default exists, and there is no violation in
any material respect of any term of any agreement, partnership agreement,
charter instrument, bylaw or other instrument to which Borrower is a party or
by which either may be bound.
5.10 COMPLIANCE WITH LAW. Borrower
(a) is not in violation of any laws, ordinances, governmental
rules or regulations to which it is subject; and
(b) has not failed to make or cause to be made any
registrations or declarations with any government or agency or
department thereof, necessary to the ownership of any of the Resorts
or to the conduct of its business including, without limitation, the
operation of the Resorts and the sale, or offering for sale, of Units
therein; which violation or failure to obtain or register materially
adversely affects the business, prospects, profits, properties or
condition (financial or otherwise) of Borrower. Borrower has, to the
extent required by its activities and businesses, fully complied with
(i) all of the applicable provisions of (A) the Consumer Credit
Protection Act, as amended; (B) the Federal Trade Commission Act, as
amended; (C) the Federal Interstate Land Sales Full Disclosure Act, as
amended; (D) any applicable condominium act; (E) all other applicable
federal statutes; and (F) all rules and regulations promulgated under
any of the foregoing; and (ii) all of the applicable provisions of any
law of any state in which Borrower is selling Units (and the rules and
regulations promulgated thereunder) relating to the sale, offering for
sale or financing of Units.
5.11 EMPLOYEE BENEFIT PLANS. Borrower is in compliance in all
material respects with all applicable provisions of ERISA, the IRC and all
other applicable laws and the regulations and interpretations thereof with
respect to all Employee Benefit Plans. No material liability has been incurred
by Borrower which remains unsatisfied for any funding obligation, taxes or
penalties with respect to any Employee Benefit Plan.
5.12 REPRESENTATIONS AS TO THE RESORTS AND GOLF COURSE.
(a) ACCESS. Each of the Resorts and the Golf Course has direct
access to a publicly dedicated road over a recorded easement and all
roadways, if any, inside the Resorts are accessible to Purchasers of
Units.
(b) UTILITIES. Electric, gas, sewer, water facilities and
other necessary utilities are lawfully available in sufficient
capacity to service each of the Resorts and Golf Course and any
easements necessary to the furnishing of such utility service have
been obtained and duly recorded.
(c) AMENITIES. All amenities described in the sales prospectus
and the Disclosure Statement for each of the Condominium Projects are
completed, or a bond insuring their completion has been posted. Each
Purchaser of a Unit will have access to and the use of all of the
amenities and public utilities of the respective Condominium
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Project as and to the extent provided in the Declaration and the
Disclosure Statement. A purchaser of a Lot will have access to all
utilities and availability of the Golf Course.
(d) CONSTRUCTION. All costs arising from the construction of
any improvements and the purchase of any equipment, inventory, or
furnishings located in or on each of the Resorts have been paid or
will be paid in the ordinary course of business but no later than 30
days after invoices for the work or equipment have been received by
Borrower.
(e) SALE OF UNITS. The sale, offering of sale, and financing
of Units or Lots in the Resorts (i) do not constitute the sale, or the
offering of sale, of Securities subject to the registration
requirements of the Securities Act of 1933, as amended, or any state
securities law; and (ii) do not violate any applicable law, statute or
regulation including, without limitation, any applicable timesharing
law, statute, or regulation.
5.13 REPRESENTATIONS AS TO STONE COUNTY ACREAGE AND TANEY COUNTY
ACREAGE
(a) ACCESS. All of the Acreage has direct access to a publicly
dedicated road over a recorded easement.
(b) UTILITIES. Electric, gas, sewer, water facilities and
other necessary utilities are lawfully in sufficient capacity to
service of the Stone County Acreage and Taney County Acreage and any
easements necessary to the furnishing of such utility service have
been obtained and duly recorded.
(c) CONSTRUCTION. All costs arising from the construction of
any improvements to the Stone County Acreage and Taney County Acreage
have been paid.
5.14 COLLATERAL.
(a) TITLE. Borrower has good and marketable title to the
Collateral, free and clear of any lien, security interest, charge or
encumbrance except for the security interest created by the Deed of
Trust, this Agreement, or otherwise created in favor of Lender. No
financing statement or other instrument similar in effect covering all
or any part of the Collateral is on file in any recording office,
except such as may have been filed in favor of Lender.
(b) POWER. Borrower has the lawful right, power and authority
to grant a security interest in the Collateral. The Deed of Trust,
this Agreement and all filings and other actions necessary or
desirable to perfect and protect such security interest, create a
valid and perfected first priority security interest in the Collateral
securing the payment and performance of the Indebtedness.
(c) TAXES AND LIENS. Borrower has paid all taxes, levies and
other charges upon the Collateral. Borrower shall defend Lender
against and save it harmless from all claims of any Persons other than
Lender with respect to the Collateral, and this indemnity shall
include all attorneys' fees and legal expenses.
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(d) DEED OF TRUST. The Deed of Trust constitutes a valid and
enforceable first and prior lien and security interest on the
properties and interests covered thereby.
SECTION 6
AFFIRMATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid, Borrower
hereby agrees with Lender as follows:
6.1 PAYMENT AND PERFORMANCE OF INDEBTEDNESS. Borrower shall pay
and promptly perform all of the obligations hereunder and under the Loan
Documents.
6.2 INSURANCE. Borrower shall duly and promptly comply with all of
the insurance provisions set forth in the Deed of Trust.
6.3 CONDEMNATION. Borrower shall duly and promptly comply with all
of the condemnation provisions set forth in the Deed of Trust.
6.4 REPORTING REQUIREMENTS. So long as the Indebtedness remains
unpaid, Borrower shall duly and promptly furnish to Lender all reports,
financial statements, compliance certificates, and other related information
required by any document or instrument evidencing, securing, or executed in
connection with the Revolving Receivables Loan, or as may otherwise be
requested by Lender from time to time.
6.5 CLAIMS. The Collateral is and shall remain free of all liens
and encumbrances whatsoever (including, without limitation, claims for labor,
services, materials and supplies) except for the Permitted Exceptions. In the
event any lien attaches to any Collateral, Borrower shall, within ten (10) days
after such attachment, either (i) cause such lien to be released of record, or
(ii) provide Lender with a bond in accordance with the applicable laws of the
state where the subject Collateral is located, issued by a corporate surety
acceptable to Lender, in an amount acceptable to Lender and in form acceptable
to Lender.
6.6 TITLE. Borrower shall promptly notify Lender of any claim,
action or proceeding affecting title to the Collateral, or any part thereof, or
any of the security interests granted hereunder and, at the request of Lender,
appear in and defend, at Borrower's expense, any such claim, action or
proceeding.
6.7 SUBORDINATED OBLIGATIONS. Borrower will not, directly or
indirectly, (i) permit any payment to be made in respect of any indebtedness,
liabilities or obligations, direct or contingent, which are subordinated by the
terms thereof or by separate instrument to the payment of principal of, and
interest on, the Note except in accordance with the terms of such
subordination, (ii) permit the amendment, rescission or other modification of
any such subordination provisions of any of Borrower's subordinated obligations
in such a manner as to affect adversely Lender's lien or the prior position of
the Note, or (iii) permit the prepayment or redemption, except for mandatory
prepayments, of all or any part of any subordinated obligations of Borrower
except in accordance with the terms any intercreditor agreement.
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6.8 FURTHER ASSURANCES. Borrower will execute and deliver, or cause
to be executed and delivered, such other and further agreements, documents,
instruments, certificates and assurances as, in the judgment of Lender
exercised in good faith may be necessary or appropriate to more effectively
evidence or secure the Indebtedness and to ensure the performance of the terms
and provisions of the Loan Documents. In addition, Borrower shall deliver to
Lender from time to time upon each request by Lender such documents,
instruments or other matters or items as Lender may require to evidence
Borrower's compliance with its representations, warranties and covenants.
6.9 AFFIRMATIVE COVENANTS IN OTHER DOCUMENTS. Borrower shall duly
and promptly comply with and perform, or cause to be complied with and
performed, all of the affirmative covenants set forth (a) in the Deed of Trust
or in any other Loan Document, (b) in any document or instrument evidencing,
securing, or executed in connection with the Revolving Receivables Loan, or (c)
in any other document or instrument evidencing, securing, or executed in
connection with any other Indebtedness.
SECTION 7
NEGATIVE COVENANTS
So long as any portion of the Indebtedness remains unpaid or Lender is
committed to lend hereunder, unless Lender otherwise consents in writing,
Borrower hereby covenants and agrees with Lender as follows:
7.1 NEGATIVE COVENANTS IN OTHER DOCUMENTS. Borrower shall not
violate or permit to be violated any of the negative covenants set forth (a) in
the Deed of Trust or in any other Loan Document, (b) in any document or
instrument evidencing, securing, or executed in connection with the Revolving
Receivables Loan, or (c) in any other document or instrument evidencing,
securing, or executed in connection with any other Indebtedness.
7.2 USE OF LENDER NAME. Borrower shall not, and shall not permit
any Affiliate to, without the prior written consent of Lender use the name of
Lender or the name of any affiliates of Lender in connection with any of their
respective businesses or activities, except in connection with internal
business matters, administration of the Loan and as required in dealings with
governmental agencies.
SECTION 8
EVENTS OF DEFAULT
An "Event of Default" shall exist if any of the following shall occur:
8.1 PAYMENTS. Failure of Lender to receive from Borrower, within
five (5) days of the date written notice has been sent to Borrower after the
due date: (a) any amount payable under the Note, or (b) any other payment due
under the Loan Documents, except for the Note payment due at the Maturity Date
for which no grace period is allowed.
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8.2 COVENANT DEFAULTS. Borrower shall fail to perform or observe
any covenant, agreement, obligation, representation or warranty contained in
this Agreement or in any of the Loan Documents (other than any covenant or
agreement obligating Borrower to pay the Indebtedness), and such failure shall
continue for thirty (30) days after Lender delivers written notice thereof to
Borrower, provided, however, if the failure is incapable of cure within such
thirty (30) day period and Borrower shall be diligently pursuing a cure, such
thirty (30) day cure period shall be extended by an additional period not to
exceed sixty (60) days.
8.3 WARRANTIES OR REPRESENTATIONS. Any representation or other
statement made by or on behalf of Borrower in this Agreement, in any of the
Loan Documents or in any instrument furnished in compliance with or in
reference to the Loan Documents, shall be false, misleading or incorrect in any
material respect as of the date made.
8.4 INVOLUNTARY PROCEEDINGS. If a case is commenced or a petition
is filed and not dismissed within sixty (60) days against Borrower under any
applicable liquidation, conservatorship, bankruptcy, moratorium, insolvency,
reorganization or similar law providing for the relief of debtors and generally
affecting the rights of creditors; a receiver, liquidator or trustee of
Borrower or of any material asset of Borrower is appointed by court order and
such order remains in effect for more than sixty (60) days; or if any material
asset of Borrower is sequestered by court order and such order remains in
effect for more than sixty (60) days.
8.5 PROCEEDINGS. Borrower voluntarily seeks, consents to or
acquiesces in the benefit of any provision of any applicable liquidation,
conservatorship, bankruptcy, moratorium, insolvency, reorganization or similar
law providing for the relief of debtors and generally affecting the rights of
creditors, whether now or hereafter in effect; consents to the filing of any
petition against it under such law; makes an assignment for the benefit of its
creditors; admits in writing its inability to pay its debts generally as they
become due; or consents to the appointment of a receiver, trustee, liquidator
or conservator for it or any part of its assets.
8.6 ATTACHMENT, JUDGMENT, TAX LIENS. The issuance, filing or levy
against Borrower of one or more attachments, injunctions, executions, tax liens
or judgments for the payment of money cumulatively in excess of $100,000 which
is not discharged in full or stayed within thirty (30) days after issuance or
filing.
8.7 INSOLVENCY. Borrower shall become insolvent or otherwise
generally be unable to pay its debts when due.
8.8 MATERIAL ADVERSE CHANGE. Any material adverse change in the
financial condition of Borrower (which is not otherwise specifically described
in this Section 8 as an Event of Default) which Lender in good faith believes
impairs or may impair Borrower's ability to duly and promptly perform all of
its obligations under this Agreement and the other Loan Documents. A change
shall not be deemed material and adverse until it results in cumulative damages
of at least $100,000 or is not subject to quantification in Lender's reasonable
opinion.
8.9 DEFAULT BY BORROWER IN OTHER AGREEMENTS. Any default by
Borrower in the payment of Indebtedness for borrowed money in excess of
$100,000 in the aggregate after the expiration of any applicable grace or cure
period; any other default under such Indebtedness which accelerates or permits
the acceleration (after the giving of notice or passage of time, or
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both) of the maturity of such Indebtedness; or any default which permits the
holders of such Indebtedness to control Borrower.
8.10 SUSPENSION OF SALES. The issuance of any stay order, cease and
desist order or similar judicial or nonjudicial sanction that materially
adversely limits or otherwise affects any Unit sales activities, and, with
respect to any such sanction only, such sanction is not dismissed, terminated
or rescinded within thirty (30) days after issuance.
8.11 DEFAULT UNDER DEED OF TRUST. If a default or Event of Default
occurs under the Deed of Trust or any other Loan Document and such default or
event of default is not cured within the applicable grace period (if any),
provided therein.
8.12 DEFAULT UNDER OTHER LOANS. If a default or Event of Default
occurs under (a) any document or instrument evidencing, securing or executed in
connection with the Revolving Receivables Loan, or (b) any document or
instrument evidencing, securing, or executed in connection with any other
Indebtedness, and any such default or event of default (as described in (a) or
(b) above) is not cured within the applicable grace period (if any) provided
therein.
SECTION 9
REMEDIES
9.1 REMEDIES UPON DEFAULT. Upon the occurrence of an Event of
Default, Lender may take any one or more of the following actions, all without
notice to Borrower:
(a) ACCELERATION. Declare the unpaid balance of the
Indebtedness, or any part thereof, immediately due and payable,
whereupon the same shall be due and payable.
(b) TERMINATION OF OBLIGATION TO ADVANCE. Terminate any
commitment of Lender to lend under this Agreement in its entirety, or
any portion of any such commitment, to the extent Lender shall deem
appropriate.
(c) EXERCISE OF OTHER RIGHTS. Exercise any and all other
rights or remedies afforded by any applicable laws or by the Loan
Documents as Lender shall deem appropriate, at law, in equity or
otherwise, including, but not limited to, the right to bring suit or
other proceeding, either for specific performance of any covenant or
condition contained in the Loan Documents or in aid of the exercise of
any right or remedy granted to Lender in the Loan Documents.
9.2 APPLICATION OF COLLATERAL; TERMINATION OF AGREEMENTS. Upon the
occurrence of an Event of Default, Lender may apply against the Indebtedness
any and all Collateral in its possession, any and all balances, credits,
deposits, accounts, reserves, indebtedness or other moneys due or owing to
Borrower held by Lender hereunder or under any other financing agreement or
otherwise, whether accrued or not.
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9.3 WAIVERS. No waiver by Lender of any Event of Default shall be
deemed to be a waiver of any other or subsequent Event of Default. No delay or
omission by Lender in exercising any right or remedy under the Loan Documents
shall impair such right or remedy or be construed as a waiver thereof or an
acquiescence therein, nor shall any single or partial exercise of any such
right or remedy preclude other or further exercise thereof, or the exercise of
any other right or remedy under the Loan Documents or otherwise. Further,
Borrower and each and every surety, endorser, guarantor and other party liable
for the payment or performance of all or any portion of the Indebtedness,
severally waive notice of the occurrence of any Event of Default, presentment
and demand for payment, protest, and notice of protest, notice of intention to
accelerate, acceleration and nonpayment, and agree that their liability shall
not be affected by any renewal or extension in the time of payment of the
Indebtedness, or by any release or change in any security for the payment or
performance of the Indebtedness, regardless of the number of such renewals,
extensions, releases or changes.
9.4 CUMULATIVE RIGHTS. All rights and remedies available to Lender
under the Loan Documents shall be cumulative and in addition to all other
rights and remedies granted to Lender at law or in equity, whether or not the
Indebtedness is due and payable and whether or not Lender shall have instituted
any suit for collection or other action in connection with the Loan Documents.
9.5 EXPENDITURES BY LENDER. Any sums expended by or on behalf of
Lender pursuant to the exercise of any right or remedy provided herein shall
become part of the Indebtedness and shall bear interest at the Default Rate,
from the date of such expenditure until the date repaid.
SECTION 10
CERTAIN RIGHTS OF LENDER
10.1 PROTECTION OF COLLATERAL. Lender may at any time, and from
time to time, take such actions as Lender deems necessary or appropriate to
protect Lender's liens and security interests in and to preserve the
Collateral. Borrower agrees to cooperate fully with all of Lender's efforts to
preserve the Collateral and Lender's liens and security interests therein and
will take such actions to preserve the Collateral and Lender's liens and
security interests therein.
10.2 PERFORMANCE BY LENDER. If Borrower fails to perform any
agreement contained herein, Lender may, but shall not be obligated to, cause
the performance of, such agreement, and the expenses of Lender incurred in
connection therewith shall be payable by Borrower pursuant to Section 10.3
below.
10.3 FEES AND EXPENSES. Borrower agrees to promptly pay all
reasonable Costs (defined below) incurred by Lender in connection with the
documentation, modification, workout, collection or enforcement of the Loan or
any of the Loan Documents (as applicable) and all such Costs shall be included
as additional indebtedness bearing interest at the Default Rate set forth in
the Note until paid. For the purposes hereof "COSTS" shall mean all
expenditures and expenses which may be paid or incurred by or on behalf of
Lender including payments to remove or protect against liens, attorneys' fees
(including fees of Lender's inside counsel), receivers' fees, engineers' fees,
accountants' fees, independent consultants' fees (including environmental
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consultants), all costs and expenses incurred in connection with any of the
foregoing, Lender's out-of-pocket costs and expenses related to any audit or
inspection of any of the Resorts or the Collateral, outlays for documentary and
expert evidence, stenographers' charges, stamp taxes, publication costs, and
costs (which may be estimates as to items to be expended after entry of an order
or judgment) for procuring all such abstracts of title, title and UCC searches,
and examination, title insurance policies, and similar data and assurances with
respect to title as Lender may deem reasonably necessary either to prosecute
any action or to evidence to bidders at any foreclosure sale a true condition
of the title to, or the value of, the Collateral. Lenders costs, including fees
of its attorney, shall be limited to $15,000 for preparation of the Loan
Documents and closing of the Loan.
10.4 LENDER'S RIGHT OF SET-OFF. Upon the occurrence of an Event of
Default, or if Lender shall be served with garnishment process in which
Borrower shall be named as defendant, whether or not any Event of Default shall
have occurred, Lender may, but shall not be required to, set-off any
indebtedness owing by Lender to Borrower against any of the Indebtedness
without first resorting to the security hereunder and without prejudice to any
other rights or remedies of Lender or its security interest herein.
10.5 ASSIGNMENT OF LENDER'S INTEREST. Lender shall have the right
to assign all or any portion of its rights in this Agreement to any subsequent
holder or holders of the Indebtedness.
10.6 POWER OF ATTORNEY. Borrower does hereby irrevocably constitute
and appoint Lender as Borrower's true and lawful agent and attorney-in-fact,
with full power of substitution, for Borrower and in Borrower's name, place and
stead, or otherwise, (i) from time to time to institute and prosecute in the
name of Borrower or otherwise, but for the benefit of Lender, any and all
proceedings at law, in equity, or otherwise, that Lender may deem proper in
order to collect, assert or enforce any claim, right or title, of any kind, in
and to the property, rights, titles, interests and liens hereby sold, assigned
or transferred, or intended so to be, and to defend and compromise any and all
actions, suits or proceedings in respect of any of the said property, rights,
titles, interests and liens; and (ii) generally to do all and any such acts and
things in relation to the Collateral as Lender shall in good xxxxx xxxx
advisable. Borrower hereby declares that the appointment made and the powers
granted pursuant to this Section are coupled with an interest and are and shall
be irrevocable by Borrower in any manner, or for any reason, unless and until
all obligations of Borrower to Lender have been satisfied.
10.7 INDEMNIFICATION OF LENDER. Borrower hereby agrees to indemnify
Lender and hold Lender harmless from and against any and all liabilities,
indebtedness, losses, damages, penalties, actions, judgments, suits, claims,
costs, expenses, and disbursements of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against Lender, in any way relating to
or arising out of (i) this Agreement and the Loan Documents and/or (ii) any of
the transactions contemplated therein or thereby (including, without
limitation, those in any way relating to or arising out of the violation by
Borrower of any federal or state laws including the Interstate Land Sales Act
or the Condominium Act). Upon receiving knowledge of any suit, claim or demand
asserted by a third party that Lender believes is covered by this indemnity,
and subject to the condition that no Event of Default under this Agreement
shall then exist, Lender shall give Borrower notice of the matter and an
opportunity to defend it, at Borrower's sole cost and expense, with legal
counsel satisfactory to Lender. Notwithstanding any defense by
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Borrower of any such suit claim or demand, Lender shall have the right to
participate in any material decision affecting the conduct or settlement of any
dispute or proceeding for which indemnification may be claimed. It is the
express intention of the parties hereto that the indemnity provided for herein
is intended to and shall protect and indemnify Lender from the consequences of
Lender's own negligence (but not gross negligence or willful misconduct),
whether or not that negligence is the sole or concurring cause of any
liability, obligation, loss, damage, penalty, action, judgment, suit, claim,
cost, expense or disbursement.
SECTION 11
MISCELLANEOUS
11.1 NOTICE. Any notice or other communication required or
permitted to be given shall be in writing addressed to the respective party as
set forth below and may be personally served, telecopied or sent by overnight
courier or U.S. Mail and shall be deemed given: (a) if served in person, when
served; (b) if telecopied, on the date of transmission if before 3:00 p.m. (New
York time) on a business day; provided that a hard copy of such notice is also
sent pursuant to (c) or (d) below; (c) if by overnight courier, on the first
business day after delivery to the courier; or (d) if by U.S. Mail, certified
or registered mail, return receipt requested on the fourth (4th) day after
deposit in the mail postage prepaid.
Notices to Borrower: Silverleaf Vacation Club, Inc.
Attn: Xxxxxx Xxxx
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
With a copy to: Meadows, Owens, Collier, Reed,
Cousins & Blau., L.L.P.
Attn: Xxxxxx Xxxxxx, Esq.
3700 Nations Bank Plaza
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Notices to Lender: CS First Boston Mortgage Capital Corp.
Attn: Principal Transaction Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
With a copy to: Fieldstone Xxxxxx & Shear
Attn: Xxxxxx X. Xxxx, Esq.
000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
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11.2 SURVIVAL. All representations, warranties, covenants and
agreements made by Borrower herein, in the other Loan Documents or in any other
agreement, document, instrument or certificate delivered by or on behalf of
Borrower under or pursuant to the Loan Documents shall be considered to have
been relied upon by Lender and shall survive the delivery to Lender of such
Loan Documents and the extension of the Indebtedness (and each part thereof),
regardless of any investigation made by or on behalf of Lender.
11.3 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
(EXCEPT AS MAY BE EXPRESSLY PROVIDED THEREIN TO THE CONTRARY) SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND
APPLICABLE LAWS OF THE UNITED STATES.
11.4 LIMITATION ON INTEREST. In no event whatsoever shall the
amount of interest paid or agreed to be paid to Lender pursuant to this
Agreement, the Note or any of the Loan Documents exceed the highest lawful rate
of interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement, the Note and the
other Loan Documents shall involve exceeding the lawful rate of interest which
a court of competent jurisdiction may deem applicable hereto ("EXCESS
INTEREST"), then ipso facto, the obligation to be fulfilled shall be reduced to
the highest lawful rate of interest permissible under such law and if, for any
reason whatsoever, Lender shall receive, as interest, an amount which would be
deemed unlawful under such applicable law, such interest shall be applied to
the Loan (whether or not due and payable), and not to the payment of interest,
or refunded to Borrower if such Loan(s) have been paid in full. Neither Borrower
nor any guarantor or endorser shall have any action against Lender for any
damages whatsoever arising out of the payment or collection of any such Excess
Interest.
11.5 INVALID PROVISIONS. If any provision of this Agreement or any
of the other Loan Documents is held to be illegal, invalid or unenforceable
under present or future laws effective during the term thereof, such provision
shall be fully severable and this Agreement and the other Loan Documents shall
be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part hereof or thereof, and the remaining
provisions hereof or thereof shall remain in full force and effect.
11.6 COUNTERPARTS, EFFECTIVENESS. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signature thereto and hereto were on the same instrument. This
Agreement shall become effective upon Lender's receipt of one or more
counterparts hereof signed by Borrower and Lender.
11.7 NO DUTY. All attorneys, accountants, appraisers, consultants,
custodians and other professional persons retained by Lender shall have the
right to act exclusively in the interests of Lender and shall have no duty of
disclosure, duty of loyalty, duty of care or other duty or obligation of any
type or nature whatsoever to Borrower or any of its partners, or to any other
person or entity.
11.8 LENDER NOT FIDUCIARY. The relationship between Borrower and
Lender is solely that of debtor and creditor, and Lender has no fiduciary or
other special relationship with Borrower, and no term or provision of any of the
Loan Documents shall be construed so as to deem the relationship between
Borrower and Lender to be other than that of debtor and creditor.
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11.9 ENTIRE AGREEMENT. This Agreement, including the Exhibits and
other Loan Documents and agreements referred to herein embody the entire
agreement between the parties hereto, supersedes all prior agreements and
understandings between the parties whether written or oral relating to the
subject matter hereof and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no oral
agreements among Lender, Borrower, the General Partner, or between any two or
more of them. This Agreement may be modified or changed only in a writing
executed by both Lender and Borrower and/or the other affected parties.
11.10 VENUE. BORROWER AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING
DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH, OUT OF, RELATED TO OR
FROM THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS SHALL BE LITIGATED, AT LENDER'S
SOLE DISCRETION AND ELECTION, ONLY IN COURTS HAVING A SITUS WITHIN THE COUNTY
OF NEW YORK, STATE OF NEW YORK. BORROWER HEREBY CONSENTS AND SUBMITS TO THE
JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN SAID COUNTY
AND STATE. BORROWER HEREBY IRREVOCABLY APPOINTS AND DESIGNATES CT CORPORATION
SYSTEM, WHOSE ADDRESS IS BORROWER, C/O CT CORPORATION SYSTEM, 0000 XXXXXXXX,
XXX XXXX, XXX XXXX 00000, AS ITS DULY AUTHORIZED AGENT FOR SERVICE OF LEGAL
PROCESS AND AGREES THAT SERVICE OF SUCH PROCESS UPON SUCH PARTY SHALL
CONSTITUTE PERSONAL SERVICE OF PROCESS UPON SUCH PARTIES PROVIDED THAT A COPY
OF SUCH PROCESS BE DELIVERED TO BORROWER PURSUANT TO THE PROVISIONS OF SECTION
11.1 OF THIS AGREEMENT. IN THE EVENT SERVICE IS UNDELIVERABLE BECAUSE SUCH
AGENT MOVES OR CEASES TO DO BUSINESS IN NEW YORK, OR LENDER CHOOSES A DIFFERENT
AGENT, BORROWER SHALL, WITHIN TEN (10) DAYS AFTER LENDER'S REQUEST, APPOINT A
SUBSTITUTE AGENT (IN NEW YORK) ON ITS BEHALF AND WITHIN SUCH PERIOD NOTIFY
LENDER OF SUCH APPOINTMENT. IF SUCH SUBSTITUTE AGENT IS NOT TIMELY APPOINTED,
LENDER SHALL, IN ITS SOLE DISCRETION, HAVE THE RIGHT TO DESIGNATE A SUBSTITUTE
AGENT UPON FIVE (5) DAYS NOTICE TO BORROWER. BORROWER HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST
IT BY LENDER ON THE LOAN DOCUMENTS IN ACCORDANCE WITH THIS PARAGRAPH.
11.11 JURY TRIAL WAIVER. BORROWER AND LENDER HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
AND THE BUSINESS RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER AND LENDER, AND
BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF
LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INCLUDE THIS WAIVER OF TRIAL BY
JURY OR HAS TAKEN ANY ACTIONS WHICH IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
BORROWER AND LENDER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH OF THEM HAS ALREADY RELIED ON
THIS WAIVER IN ENTERING INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND
THAT EACH OF THEM WILL CONTINUE TO RELY ON THIS WAIVER IN THEIR RELATED FUTURE
DEALINGS. BORROWER AND LENDER FURTHER ACKNOWLEDGE THAT THEY HAVE
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BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING
OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL.
11.12 DIRECTLY OR INDIRECTLY. Where any provision in the Agreement
refers to action to be taken by any Person, or which such Person is prohibited
from taking, such provisions shall be applicable whether such action is taken
directly or indirectly by such Person.
11.13 HEADINGS. Section headings have been inserted in the Agreement
as a matter of convenience of reference only; such section headings are not a
part of the Agreement and shall not be used in the interpretation of this
Agreement.
11.14 BROKER'S FEES. There are no brokers, finders' or other similar
fees or commitments due with respect to the transactions described in the
Agreement. Borrower shall defend Lender and save and hold it harmless from all
claims of any Persons for any such fees which indemnity shall include
reasonable attorneys' fees and legal expenses.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to
be executed and delivered by their duly authorized officers effective as of the
date first above written.
BORROWER: BORROWER:
CONDOMINIUM BUILDERS, INC., SILVERLEAF VACATION CLUB, INC.,
a Texas corporation a Texas corporation
/s/ XXXXXX XXXX /s/ XXXXXX XXXX
--------------------------------- ---------------------------------
By: XXXXXX XXXX, By: XXXXXX XXXX,
PRESIDENT Chief Executive Officer
LENDER:
CS FIRST BOSTON MORTGAGE CAPITAL
CORP., a Delaware corporation
By: /s/ XXXXX XXXX
------------------------------
Name: XXXXX XXXX
----------------------------
Its: Vice President
----------------------------
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SCHEDULE 4.1
CLOSING DELIVERIES
Pursuant to Section 4.1 of the Agreement, Lender shall not be
obligated to fund the initial Advance unless Lender shall have received, in
form and substance satisfactory to Lender, all documents, instruments and
information as follows:
1. OPINIONS OF COUNSEL. An opinion of Borrower's counsel stating:
(a) that the Loan is not usurious under applicable laws; (b) that the Loan
Documents are validly executed, duly authorized and binding and enforceable in
accordance with their terms; (c) that the execution and delivery of the Loan
Documents and the performance of the transactions contemplated thereby do not
violate or contravene any law, court order, judgment or contract to which
Borrower is a party; and (d) such further opinions as Lender shall require. The
opinion of Borrower's counsel shall be from an independent counsel acceptable
to Lender.
2. TITLE. The Title Insurer shall have issued to Lender the Title
Insurance Policy or a binding commitment satisfactory to Lender's counsel
without any exceptions from coverage other than the Permitted Exceptions.
3. AUTHORIZATIONS. Such certified authorizations or resolutions
required to authorize Borrower to enter into and execute this Agreement, the
Note and the other Loan Documents in connection therewith and to borrow the
Loan from Lender.
4. EVIDENCE OF INSURANCE. Evidence of policies of insurance as
required by the Deed of Trust
5. APPLICABLE LAWS. Evidence that Borrower is in compliance with
all applicable laws in connection with its sales of Intervals.
6. LOAN DOCUMENTS. All documents to be executed in connection
with the Loan, including, without limitation, the Note, Deed of Trust, the Loan
and Security Agreement, UCC-1 Financing Statements and such other documents as
Lender may require.
7. OTHER LOAN DOCUMENTS. Copies of all loan documents between
Borrower and any lender holding a deed of trust or mortgage lien on any of the
Property or any portion thereof.
8. ENVIRONMENTAL INDEMNITY. An Environmental Indemnity Agreement,
executed by Borrower in favor of Lender.
9. OTHER ITEMS. Such other agreements, documents, instruments and
certificates as Lender may request to evidence the Indebtedness and to evidence
and perfect the liens and security interests contemplated by the Loan
Documents.
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10. UCC SEARCHES. Such searches of the applicable public records as
it deems necessary under applicable law to verify that it has a first and prior
perfected lien and security interest covering all of the Collateral.
11. TAXES. Evidence that all real property taxes owed by or for
which Borrower is responsible for collection have been paid.
12. CREDIT REFERENCES. Such satisfactory credit references and
results of credit investigations as Lender may require for Borrower and any
Affiliate.
13. STRUCTURY ADVISORY FEE. Lender shall have received the
Structury Advisory Fee.
ANY WAIVER OF ANY OF THE AFORESAID CONDITIONS PRECEDENT MUST BE IN
WRITING, SPECIFY THE CONDITION AND BE SIGNED BY AN AUTHORIZED OFFICER OF THE
LENDER. ANY WAIVER, IF ANY, SHALL ONLY WAIVE THE SPECIFIED CONDITION AND NO
OTHER, AND SHALL NOT BE DEEMED OR CONSTRUED TO BE A SUBSEQUENT WAIVER. NEITHER
THE CLOSING OF THE LOAN NOR THE DISBURSEMENT OF ANY LOAN PROCEEDS SHALL BE
DEEMED A WAIVER OF ANY OF THE AFORESAID CONDITIONS PRECEDENT.
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