PURCHASE AND EXCHANGE AGREEMENT
Final Execution Copy
This Purchase and Exchange Agreement (“Agreement”) is made and entered into to be
effective as of this 14th day of May, 2009, by and between Xxxxx Xxxxxxxx, Ltd., an Illinois
limited partnership (“Holder”), Bigstar International, LLC, an Illinois limited liability
company (“Seller”), and Silverleaf Resorts, Inc., a Delaware corporation
(“Company”). Unless otherwise defined herein, all capitalized terms used herein shall have
the meanings assigned to such terms in the Indenture (as defined).
RECITALS
A. Holder and Seller currently hold $14,011,000 in principal amount of the Company’s 8.0%
Senior Subordinated Notes due 2010 (the “Old Notes”);
B. The Holder desires to exchange $10,000,000 in principal amount of its Old Notes for an
equal principal amount of the Company’s 10.0% Senior Subordinated Notes due 2012 (the “Exchange
Notes”) on the terms and conditions set forth in this Agreement (the “Note Exchange”),
and Seller desires to sell to the Company $3,500,000 in principal amount of its Old Notes for a
purchase price equal to $3,500,000, plus accrued interest on its $3,500,000 in Old Notes through,
and including, the date of Closing (the “Note Purchase”);
C. The Company desires to issue to the Holder $10,000,000 in principal amount of Exchange
Notes in exchange for $10,000,000 in principal amount of the Holder’s Old Notes and to purchase
from Seller for cash $3,500,000 of the Seller’s Old Notes on the terms set forth herein;
D. The Exchange Notes will be issued pursuant to an indenture (the “Indenture”), to be
entered into by the Company and Xxxxx Fargo Bank, National Association (the “Trustee”),
substantially in the form of Exhibit A hereto; and
E. Upon the Closing of the Note Exchange and Note Purchase, the Holder will continue to hold
$511,000 in Old Notes (the “Retained Old Notes”).
NOW, THEREFORE, in consideration of the premises and the agreements set forth below, and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
Note Purchase and Note Exchange
Note Purchase and Note Exchange
Section 1.1 Purchase and Exchange
(a) Upon the terms and subject to the conditions of this Agreement, at the Closing, the
Company shall purchase from the Seller, and the Seller agrees to sell to the Company $3,500,000 in
aggregate principal amount of the Seller’s Old Notes at a purchase price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest on such Old Notes to, and including, the
Closing Date (the Purchase Price”); and
(b) Upon the terms and subject to the conditions of this Agreement, at the Closing (as defined
herein), the Company shall issue to the Holder, and the Holder agrees to accept from the Company,
$10,000,000 in aggregate principal amount of Exchange Notes, together with all accrued and unpaid
interest paid in cash on the Old Notes to, but excluding, the Closing Date, in exchange for
$10,000,000 aggregate principal amount of the Holder’s Old Notes.
Section 1.2 Closing. The closing of the two transactions contemplated by this
Agreement (collectively the “Closing”) is anticipated to take place sequentially in two
stages beginning on the third business day after satisfaction of all the conditions to Closing set
forth herein at the offices of the Company, 0000 Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
or on such other date as the parties may agree in writing (the “First Closing Date”). On
the First Closing Date, the Company shall pay to the Seller in cash the Purchase Price by wire
transfer of immediately available funds to the financial institution that holds the Seller’s Old
Notes, and the Seller shall transfer and deliver or cause to be delivered to the Company free of
all liens all of Seller’s right, title and interest in and to $3,500,000 in Seller’s Old Notes that
are the subject of the Note Purchase. The second stage of the Closing shall take place three (3)
business days after the First Closing Date at the offices of the Company (the “Second Closing
Date”). On the Second Closing Date, (a) the Holder shall transfer and deliver or cause to be
delivered to the Company free of all liens all of Holder’s right, title and interest in and to
$10,000,000 of Holder’s Old Notes that are the subject of the Note Exchange, and (b) the Company
shall issue for the benefit of the Holder $10,000,000 in Exchange Notes, and pay to Holder in cash
by wire transfer of immediately available funds an amount equal to the accrued and unpaid interest
on the Holder’s Old Notes to, but excluding, the Second Closing Date. In the case of both the Note
Purchase on the First Closing Date and the Note Exchange on the Second Closing Date, Holder and
Seller will also deliver such documents of conveyance or transfer as may be necessary or reasonable
to transfer to and confirm in the Company all right, title and interest in and to the Old Notes of
Holder and Seller that are transferred to the Company in connection with the Note Purchase and the
Note Exchange.
Section 1.3 Conditions to Closing at the First Closing Date and the Second Closing
Date. The obligations of the Seller and the Holder hereunder to consummate the transactions
contemplated hereby are subject to the satisfaction, at or before the First
Closing Date of each of the following conditions, provided that these conditions are for the
Seller’s and the Holder’s sole benefit and may be waived by the Seller and the Holder at any time
in their sole discretion by providing the Company with prior written notice thereof:
(a) The Company’s Board of Directors shall have approved the terms and conditions of this
Agreement and the Company shall have executed and delivered this Agreement to Holder and Seller;
(b) The Indenture shall have become effective with the Securities and Exchange Commission
under the Trust Indenture Act of 1939;
(c) The Company, all Guarantors, and the Trustee shall have executed and delivered the
Indenture and the Subsidiary Guarantees;
(d) The Company shall have executed and delivered the Exchange Notes in the aggregate
principal amount of $10,000,000 in connection with the Note Exchange;
(e) The Company and the Guarantors shall have delivered to the Seller, the Holder, and the
Trustee a certificate of the Company and the Guarantors, dated effective as of the First Closing
Date, executed by the secretary of the Company and the secretaries of each of the Guarantors
certifying in such capacity and on behalf of the Company and the Guarantors (i) as to the
incumbency and signature of the officer of the Company and the Guarantors who executed this
Agreement, the Indenture, the Subsidiary Guarantees and the Exchange Notes; and (ii) as to the
adoption of resolutions of the board of directors of the Company and the Guarantors which are in
full force and effect on the Closing Date, authorizing (x) the execution and delivery of this
Agreement, the Indenture, the Subsidiary Guarantees and the Exchange Notes; and (y) the performance
of the obligations of the Company and the Guarantors hereunder and thereunder;
(f) The Company shall have delivered to the Seller, the Holder, and the Trustee a certificate
of the Chief Executive Officer or Chief Financial Officer of the Company, dated the First Closing
Date, to the effect that the representations, warranties, and covenants of the Company in this
Agreement are true and correct on and as of the First Closing Date with the same effect as if made
on the First Closing Date and that the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the First Closing Date;
(g) The Company shall pay the Purchase Price to or for the benefit of the Seller in connection
with the Note Purchase;
(h) The Company shall have obtained a Committee on Uniform Securities Identification
Procedures number (CUSIP number) for the Exchange Notes; and
(i) The Company shall have delivered to the Holder and the Trustee the opinion of Xxxxxxx
Xxxxxxx Xxxx Cousins & Blau, LLP, dated as of the First Closing Date, in substantially the form of
Exhibit B attached hereto.
The obligation of the Company hereunder to consummate the transactions contemplated hereby on
the First Closing Date is subject to the satisfaction, at or before the First Closing Date, of each
of the following conditions, provided that these conditions are for the Company’s sole benefit and
may be waived by the Company at any time in its sole discretion by providing the Seller and the
Holder with prior written notice thereof:
(a) The Holder and the Seller shall have executed and delivered to the Company this Agreement;
(b) The Seller shall have delivered, or caused to be delivered, to the Trustee via one-sided
DWAC transmission the $3,500,000 in Old Notes being acquired by the Company from the Seller
pursuant to the Note Purchase;
(c) The Seller and the Holder shall have delivered to the Company a certificate to the effect
that the representations, warranties, and covenants of the Seller and the Holder in this Agreement
are true and correct on and as of the First Closing Date with the same effect as if made on the
First Closing Date and that the Seller and the Holder have complied with all the agreements and
satisfied all the conditions on their respective parts to be performed or satisfied at or prior to
the First Closing Date; and
(d) The Company shall have received a fairness opinion as required by Section 4.11 of the
indenture for the Old Notes which shall be acceptable in form and substance to the Company’s Board
of Directors.
The obligation of the Company hereunder to consummate the transactions contemplated hereby at
the Second Closing Date is subject to the satisfaction, at or before the Second Closing Date, of
each of the following conditions, provided that these conditions are for the Company’s sole benefit
and may be waived by the Company at any time in its sole discretion by providing the Seller and the
Holder with prior written notice thereof:
(a) The Holder and the Seller shall have executed and delivered to the Company this Agreement;
(b) The Seller shall have delivered, or caused to be delivered, to the Trustee via one-sided
DWAC transmission the $10,000,000 in Old Notes being acquired by the Company from the Seller
pursuant to the Note Exchange; and
(c) The Seller and the Holder shall have delivered to the Company a certificate to the effect
that the representations, warranties, and covenants of the Seller and the Holder in this Agreement
are true and correct on and as of the Second Closing Date with the same effect as if made on the
Second Closing Date and that the Seller and
the Holder have complied with all the agreements and satisfied all the conditions on their
respective parts to be performed or satisfied at or prior to the Second Closing Date.
Section 1.4 The Global Note and The Exchange Notes. The Exchange Notes will be issued
pursuant to the terms and conditions of the Indenture. The Company’s payment obligations under the
Exchange Notes will be guaranteed by certain of the Company’s subsidiaries (collectively the
“Guarantors”) who are named in the Indenture. The Exchange Notes will initially be issued
in the form of one global note (the “Global Note”). The Global Note will be deposited by
the Trustee on the date of the Closing with The Depository Trust Company (the “Depository”)
and registered in the name of Cede & Co., as nominee of the Depository (the “Global
Noteholder”). The Depository is a limited-purpose trust company that holds securities for
participating financial institutions (collectively “Depository Participants”) and to
facilitate the clearance and settlement of transactions in uncertificated securities between
Depository Participants through book-entry changes in accounts maintained by the Depository for
Depository Participants. Upon receipt of the Global Note, the Depository will credit the account
of the Depository Participant acting as agent for the Holder with the Holder’s beneficially owned
portion of the principal amount of the Global Note. The Note Exchange will occur on the Second
Closing Date via DWAC delivery. Thereafter, ownership of the Exchange Notes evidenced by the
Global Note will be shown on, and the transfer of beneficial ownership thereof will be effective
only through, records maintained by the Depository. Under the terms of the Global Note and the
Indenture, the Company is responsible for making all payments of principal and interest to the
Trustee. Payments in respect of the principal and interest on the Exchange Notes on all applicable
record dates will then be payable by the Trustee to the Global Note Holder in its capacity as the
registered holder under the Indenture. However neither the Company nor the Trustee has or will
have any responsibility or liability for the payment of such amounts to beneficial owners of the
Exchange Notes, such as the Holder. It is the responsibility of the Depository to immediately
credit the accounts of the relevant Depository Participants (including the Depository Participant
acting as agent for the Holder) with all payments of principal and interest remitted to the
Depository by the Trustee.
Section 1.5 Principal and Interest Payments on Exchange Notes. Under the terms and
conditions of the Indenture and the Global Note, the Holder will receive payments of accrued
interest on the Exchange Notes on October 1, 2009 and April 1, 2010. On July 1, 2010, the Holder
will begin receiving equal quarterly payments of accrued interest and principal in accordance with
the Amortization Schedule attached to and made a part of the Global Note. Under the terms of the
Exchange Notes, these quarterly payments of principal and interest will commence on July 1, 2010,
and will continue on each October 1, January 1, April 1, and July 1 thereafter until the Exchange
Notes are paid in full.
Section 1.6 Retained Old Notes; Cancellation of Old Notes Acquired in Note Exchange and
Note Purchase. After the Closing, the Holder will continue to hold the Retained Old Notes.
Immediately following the closing of each of the Note Purchase and the Note Exchange, the Old Notes
acquired by the Company under each of these
transactions will be accepted and cancelled by the Trustee acting on instructions from the
Company.
ARTICLE II
Representations, Warranties and Covenants of the Holder and the Seller
Representations, Warranties and Covenants of the Holder and the Seller
The Holder and the Seller hereby make the following representations, warranties, and covenants
each of which is true and correct on the date hereof and shall survive the Closing Date and the
transactions contemplated hereby.
Section 2.1 Existence and Power.
(a) Each of the Holder and the Seller is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and each has the power, authority and
capacity to execute and deliver this Agreement, to perform its obligations hereunder, and to
consummate the transactions contemplated hereby.
(b) The execution of this Agreement by the Holder and the Seller and the consummation by the
Holder and the Seller of the transactions contemplated hereby do not and will not constitute or
result in a breach, violation, conflict or default under any note, bond, mortgage, deed, indenture,
lien, instrument, contract, agreement, lease or license to which either the Holder or the Seller is
a party, whether written or oral, express or implied, or result in any violation of any statute,
law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any court,
administrative or regulatory body, governmental authority, arbitrator, mediator or similar body
which is binding upon the Holder or the Seller or cause the acceleration or termination of any
obligation or right of the Holder or the Seller, except for breaches, conflicts, defaults, or
violations which would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the ability of the Holder or the Seller to perform its obligations
hereunder.
Section 2.2 Valid and Enforceable Agreement; Authorization. This Agreement has been
duly executed and delivered by the Holder and the Seller and constitutes a legal, valid and binding
obligation of each of the Holder or the Seller, enforceable against the Holder and the Seller in
accordance with its terms, except that such enforcement may be subject to (a) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or relating to enforcement
of creditors’ rights generally, and (b) general principles of equity.
Section 2.3 Title to Old Notes. The Holder is the sole legal and beneficial owner of
and has good and valid title to the Old Notes being exchanged by such Holder hereby. The Holder
will transfer at Closing the Old Notes that are the subject of the Note Exchange free and clear of
any mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement,
option, equity or other adverse claim thereto; and as of the Closing of the Note Exchange, the Old
Notes being exchanged by the Holder will not, in whole or in part, be subject to any (i)
assignment, transfer, hypothecation,
pledge or other similar lien or encumbrance, or (ii) transfer order, power of attorney or
other authority of any nature whatsoever with respect to such Old Notes. The Seller is the sole
legal and beneficial owner of and has good and valid title to the Old Notes being sold by the
Seller hereby. The Seller will transfer at Closing the Old Notes that are the subject of the Note
Purchase free and clear of any mortgage, lien, pledge, charge, security interest, encumbrance,
title retention agreement, option, equity or other adverse claim thereto; and as of the Closing of
the Note Purchase, the Old Notes being sold by the Seller will not, in whole or in part, be subject
to any (i) assignment, transfer, hypothecation, pledge or similar lien or encumbrance, or (ii) any
transfer order, power of attorney or other authority of any nature whatsoever with respect to such
Old Notes.
Section 2.4 Investment Decision. The Holder is a “qualified institutional buyer”
within the meaning of Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”) and was not organized for the purpose of acquiring the Exchange Notes. The Holder (or its
authorized representative) is familiar with the Company’s objectives and business plan, has had the
opportunity to review the Company’s filings with the Securities and Exchange Commission (the
“SEC”), including, without limitation, the Company’s Annual Report for 2008 on Form 10-K
filed on March 10, 2009, and the Company’s Definitive Proxy Statement filed on April 3, 2009 (all
of such filings with the SEC being referred to, collectively, as the “SEC Documents”). The
Holder has reviewed copies of the Indenture, including copies of the Indenture for the Exchange
Notes marked to show the differences between such documents and the indenture for the Old Notes,
and has had an opportunity to ask questions of the Company and to obtain from representatives of
the Company such information as is necessary to determine the changes reflected in each such
document, including the changes to the terms of the Exchange Notes compared with the Old Notes. The
Holder has had an opportunity to ask questions of the Company and its representative and to obtain
from representatives of the Company such information as is necessary to permit it to evaluate the
merits and risks of its investment in the Company and has independently, without reliance upon any
representatives of the Company and based on such information as the Holder deemed appropriate, made
its own analysis and decision to enter into this Agreement. The Holder has had the opportunity to
consult with its accounting, tax, financial and legal advisors to be able to evaluate the
accounting, tax, financial and legal risks involved in the exchange of the Old Notes pursuant
hereto and to make an informed investment decision with respect to such exchange. The Holder
acknowledges that the Company is relying on the truth and accuracy of the foregoing representations
and warranties in the offering of the Exchange Notes to the Holder.
Section 2.5 Purchase Entirely for Own Account. The Holder is acquiring the Exchange
Notes for its own account and not with a view towards, or for resale in connection with, the public
sale or distribution thereof, except pursuant to sales registered or exempted under the Securities
Act; provided, however that by making the representations herein, the Holder does not agree to hold
any of such Exchange Notes for any minimum or other specific term and reserves the right to dispose
of such Exchange Notes at any time in accordance with or pursuant to a registration statement or an
exemption under the Securities Act and pursuant to the applicable terms of this Agreement. The
Holder is acquiring the Exchange Notes to be issued to the Holder
hereunder in the ordinary course of its business. The Holder does not presently have any
understanding, directly or indirectly, with any person to distribute any of the Exchange Notes to
be issued to the Holder hereunder.
Section 2.6 Character of Exchange Notes. The Holder understands each of the
following statements in this Section 2.6. The Exchange Notes have not been registered under the
Securities Act, and are being issued hereunder in reliance upon a specific exemption from the
registration provisions of the Securities Act afforded by Section 3(a)(9) of the Securities Act.
Section 3(a)(9) provides that the registration requirements of the Securities Act will not apply to
any security exchanged by the issuer with its existing security holders exclusively where no
commission or other remuneration is paid or given directly or indirectly for soliciting such
exchange. The Exchange Notes are also being issued pursuant to Section 18(b)(4)(C) of the
Securities Act, which affords an exemption from the registration and qualification requirements of
applicable state securities laws. Under current interpretations of the SEC, securities that are
obtained in a Section 3(a)(9) exchange assume the same character (i.e., restricted or unrestricted)
as the securities that have been surrendered. To the extent that the Old Notes are unrestricted
securities, the Exchange Notes will be unrestricted securities; however, because the Holder is an
“affiliate” of the Company (as such term is defined in Rule 144 of the Securities Act), the Holder
will only be able to resell the Exchange Notes subject to the requirements of Rule 144, absent
registration or the availability of another exemption.
Section 2.7 No Public Market. The Holder understands that no established public
market now exists for the Exchange Notes, and that the Company has made no representation or
assurance that an established public market will ever exist for the Exchange Notes.
Section 2.8 Legends. The Holder understands that the Exchange Notes will bear one or
more of the legends required by the Indenture.
Section 2.9 Affiliate Status. The Holder is, and has been during the preceding three
months, an “affiliate” of the Company as such term is defined in Rule 144 under the Securities Act.
ARTICLE III
Representations, Warranties and Covenants of the Company
Representations, Warranties and Covenants of the Company
The Company hereby makes the following representations, warranties, and covenants each of
which is true and correct on the date hereof and shall survive the date of the Closing and the
transactions contemplated hereby.
Section 3.1 Existence and Power.
(a) The Company is a corporation duly organized, validly existing and in good standing under
the laws of the State of Texas and has the power, authority and
capacity to execute and deliver this Agreement, to perform the Company’s obligations
hereunder, and to consummate the transactions contemplated hereby.
(b) The execution of this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby (i) does not require the consent, approval, authorization, order,
registration or qualification of, or filing with, any governmental authority or court, or body or
arbitrator having jurisdiction over the Company other than as contemplated herein, and (ii) does
not and will not constitute or result in a breach, violation or default under any note, bond,
mortgage, deed, indenture, lien, instrument, contract, agreement, lease or license, whether written
or oral, express or implied, or with the Company’s Articles of Incorporation or by-laws, or any
statute, law, ordinance, decree, order, injunction, rule, directive, judgment or regulation of any
court, administrative or regulatory body, governmental authority, arbitrator, mediator or similar
body on the part of the Company or on the part of any other party thereto or cause the acceleration
or termination of any obligation or right of the Company or any other party thereto.
Section 3.2 Valid and Enforceable Agreement; Authorization. This Agreement has been
duly executed and delivered by the Company and constitutes a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms, except that such
enforcement may be subject to (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors’ rights generally, and (b) general
principles of equity.
Section 3.3 Capitalization. At the Closing, the authorized capital stock of the
Company will consist of 100,000,000 shares of Common Stock, par value $0.01 per share, and
10,000,000 shares of Preferred Stock, par value $0.01 per share. As of the close of business on May
5, 2009, there were 38,146,943 shares of Common Stock issued and outstanding and there were no
shares of Preferred Stock issued and outstanding. All issued and outstanding shares have been duly
authorized and validly issued, and are fully paid and non-assessable, and were issued in compliance
with all applicable state and federal laws concerning the issuance of securities and all applicable
pre-emptive, participation, rights of first refusal and other similar rights.
Section 3.4 Valid Issuance of the Exchange Notes. The Exchange Notes, when issued,
sold and delivered in accordance with the terms and for the consideration set forth in this
Agreement and the Indenture, will constitute legal and binding obligations of the Company, be
validly issued and free of restrictions on transfer other than restrictions on transfer under this
Agreement, applicable state and federal securities laws and liens or encumbrances created by or
imposed by the Holder, and enforceable against the Company in accordance with their terms, except
that such enforcement may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting or relating to enforcement of creditors’ rights generally, and (b)
general principles of equity. The Company has no contract, arrangement, or understanding relating
to, and will not directly or indirectly pay any commission or other remuneration to any broker,
dealer, salesperson, agent, or any other person for soliciting votes to accept or reject the Note
Exchange. In addition, none of the Company’s financial advisors, nor any broker, dealer,
salesperson, agent, or any other person is engaged or authorized to express any statement, opinion,
recommendation, or judgment with respect to the relative merits and risks of the Note Exchange.
Section 3.5 Financial Statements. Except as qualified in the SEC Documents, the
audited and unaudited financial statements and schedules included in the SEC Documents, present
fairly in all material respects the consolidated financial position of the Company and its
subsidiaries as of the dates indicated and the consolidated results of operations and cash flows of
the Company and its subsidiaries for the periods specified; except as qualified in the SEC
Documents, such financial statements and schedules have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis during the periods involved.
Section 3.6 Legal Proceedings. No legal or governmental proceedings or investigations
are pending or, to the knowledge of the Company, threatened to which the Company is a party or to
which the property of the Company or any of its subsidiaries is subject that are not described in
the SEC Documents, except for such proceedings or investigations which would not reasonably be
expected to, singly or in the aggregate, result in a Material Adverse Effect. As used in this
Agreement, the term “Material Adverse Effect” shall mean when used in respect of any matter
relating to the Company a material adverse effect on the business, condition (financial or
otherwise), properties or results of operations of the Company and its subsidiaries, considered as
one enterprise, or would materially adversely affect the ability of the Company to perform its
obligations under this Agreement, the Indenture, and the Exchange Notes.
Section 3.7 Compliance with Laws; Permits. The Company and its subsidiaries possess
all certificates, authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses, except where the failure
to have such certificates, authorizations and permits would not reasonably be expected to have a
Material Adverse Effect, and none of the Company and its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such certificate, authorization or
permit which would reasonably be expected to, singly or in the aggregate, result in a Material
Adverse Effect. The Company and its subsidiaries are and have been in compliance with all
applicable laws, statutes, ordinances, rules, regulations, orders, judgments, decisions, decrees,
standards, and requirements relating to their respective businesses, except where any such
non-compliance would not reasonably be expected to have a Material Adverse Effect.
Section 3.8 No Material Adverse Effect. Since the respective dates as of which
information is given in the SEC Documents, there has not been any event or occurrence having a
Material Adverse Effect on the Company or its subsidiaries, except as reflected or disclosed in a
subsequent SEC Document.
ARTICLE IV
Miscellaneous Provisions
Miscellaneous Provisions
Section 4.1 Notice. Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed first class mail (postage prepaid) with return
receipt requested or sent by reputable overnight courier service (charges prepaid) to such address
as is set forth on the signature page of this Agreement, or to such other address as the recipient
party has specified by prior written notice to the sending party. Notices will be deemed to have
been given hereunder when delivered personally, three business days after deposit in the U.S. mail
postage prepaid with return receipt requested and two business days after deposit postage prepaid
with a reputable overnight courier service for delivery on the next business day.
Section 4.2 Entire Agreement. This Agreement and the other documents and agreements
executed in connection with the Note Exchange and the Note Purchase embody the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof and supersede all
prior and contemporaneous oral or written agreements, representations, warranties, contracts,
correspondence, conversations, memoranda and understandings between or among the parties or any of
their agents, representatives or affiliates relative to such subject matter, including, without
limitation, any term sheets, emails or draft documents.
Section 4.3 Assignment; Binding Agreement. This Agreement and the various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon the parties hereto
and their successors and assigns.
Section 4.4 Counterparts. This Agreement may be executed in multiple counterparts,
and on separate counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Any counterpart or other signature hereupon
delivered by facsimile shall be deemed for all purposes as constituting good and valid execution
and delivery of this Agreement by such party.
Section 4.5 Remedies Cumulative. Except as otherwise provided herein, all rights and
remedies of the parties under this Agreement are cumulative and without prejudice to any other
rights or remedies available at law.
Section 4.6 Governing Law. This Agreement shall in all respects be construed in
accordance with and governed by the substantive laws of the State of Texas, without reference to
its choice of law rules.
Section 4.7 No Third Party Beneficiaries or Other Rights. Nothing herein shall grant
to or create in any person not a party hereto, or any such person’s dependents or heirs, any right
to any benefits hereunder, and no such party shall be entitled to xxx any party to this Agreement
with respect thereto.
Section 4.8 Waiver; Consent. This Agreement may not be changed, amended, terminated,
augmented, rescinded or discharged (other than in accordance with its terms), in whole or in part,
except by a writing executed by the parties hereto. No waiver of any of the provisions or
conditions of this Agreement or any of the rights of a party hereto shall be effective or binding
unless such waiver shall be in writing and signed by the party claimed to have given or consented
thereto. Except to the extent otherwise agreed in writing, no waiver of any term, condition or
other provision of this Agreement, or any breach thereof shall be deemed to be a waiver of any
other term, condition or provision or any breach thereof, or any subsequent breach of the same
term, condition or provision, nor shall any forbearance to seek a remedy for any noncompliance or
breach be deemed to be a waiver of a party’s rights and remedies with respect to such noncompliance
or breach.
Section 4.9 Word Meanings. The words such as “herein”, “hereinafter”, “hereof”, and
“hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words
appear unless the context otherwise requires. The singular shall include the plural, and vice
versa, unless the context otherwise requires. The masculine shall include the feminine and neuter,
and vice versa, unless the context otherwise requires.
Section 4.10 No Broker. Neither party has engaged any third party as broker or
finder or incurred or become obligated to pay any broker’s commission or finder’s fee in connection
with the transactions contemplated by this Agreement other than such fees and expenses for which it
shall be solely responsible.
Section 4.11 Further Assurances. The Holder, the Seller, and the Company each hereby
agree to execute and deliver, or cause to be executed and delivered, such other documents,
instruments and agreements, and take such other actions, as either party may reasonably request in
connection with the transactions contemplated by this Agreement.
Section 4.12 Costs and Expenses. The Holder, the Seller, and the Company shall each
pay their own respective costs and expenses incurred in connection with the negotiation,
preparation, execution and performance of this Agreement, including, but not limited to, attorneys’
fees.
Section 4.13 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 4.14 Severability. If any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
Section 4.15 Termination. If all of the conditions to Closing set out in Section 1.3
of this Agreement have not been met and if either the Note Purchase or the Note Exchange have not
closed within thirty (30) days following the effective date of this
Agreement, either the Holder, the Seller, or the Company may elect to terminate this Agreement
as to any transaction that has not yet closed.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed as of
the date first above written.
| HOLDER: | ||||||||||
| XXXXX XXXXXXXX, LTD. | ||||||||||
Address: |
||||||||||
| 0000 Xxxxxxx Xxxxxx, Xxxxx 000 | By: | /s/ Xxxxxxxx Xxxxxxxx | ||||||||
| Xxxxxxxx, Xxxxxxxx 00000 | Name: | Xxxxxxxx Xxxxxxxx | ||||||||
Attn:
|
Xxxxxxxx X. Xxxxxxxx, | Title: | General Partner | |||||||
| General Partner | Date of Execution: | 5/6/2009 | ||||||||
| SELLER: | ||||||||||
| BIGSTAR INTERNATIONAL, LLC | ||||||||||
Address: |
||||||||||
| 0000 Xxxxxxx Xxxxxx, Xxxxx 000 | By: | /s/ Xxxxxxxx Xxxxxxxx | ||||||||
| Xxxxxxxx, Xxxxxxxx 00000 | Name: | Xxxxxxxx Xxxxxxxx | ||||||||
Attn:
|
Xxxxxxxx X. Xxxxxxxx, | Title: | President, Bun Partners, Inc., its Manager | |||||||
| Date of Execution: | 5/6/2009 | |||||||||
| COMPANY: | ||||||||||
| SILVERLEAF RESORTS, INC. | ||||||||||
Address: |
||||||||||
| 0000 Xxxxx Xxxx Xxxxx, Xxxxx 000 | By: | /s/ Xxxxxx X. Xxxx | ||||||||
| Xxxxxx, Xxxxx 00000 | Name: | Xxxxxx X. Xxxx | ||||||||
Attn:
|
Xxxxxx X. Xxxx, | Title: | Chairman, CEO & President | |||||||
| Chairman and Chief Executive Officer | Date of Execution: | 5/14/2009 | ||||||||
[Exhibits A and B Omitted]
