1
EXHIBIT 1.1
DRAFT MARCH 5, 1998
2,500,000 SHARES
SILVERLEAF RESORTS INC.
COMMON STOCK
UNDERWRITING AGREEMENT
_______ 1998
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
EVEREN SECURITIES, INC.
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Silverleaf Resorts, Inc., a Texas corporation
("Company"), proposes to issue and sell 2,000,000 shares of its Common Stock
("Securities") and Xxxxxx X. Xxxx (the "Selling Shareholder") proposes to sell
500,000 outstanding shares of the Securities (such 2,500,000 shares of
Securities being hereinafter referred to as the "Firm Securities"). The
Selling Shareholder also proposes to sell to the Underwriters, at the option of
the Underwriters, an aggregate of not more than 375,000 additional outstanding
shares of the Company's Securities, (such additional shares being hereinafter
referred to as the "Optional Securities"). The Firm Securities and the Optional
Securities are herein collectively called the "Offered Securities". The Company
and the Selling Shareholder hereby agree with the several Underwriters named in
Schedule A hereto ("Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Shareholder.
(a) The Company represents and warrants to, and agrees
with, the several Underwriters that:
(i) A registration statement (No. 333- )
relating to the Offered Securities, including a form of
prospectus, has been filed with the Securities and Exchange
Commission ("Commission") and either (A) has been declared
effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration
statement ("initial registration statement") has been declared
effective, either (A) an additional registration statement
("additional registration statement") relating to the Offered
Securities may have been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the
Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if
applicable, the additional registration statement or (B) such
an additional registration statement may be filed with the
Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under
the Act pursuant to the initial registration statement and
such additional registration statement. If the Company does
not propose to amend the initial registration statement or if
an additional registration statement has been filed
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and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement
has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any)
to each such registration statement has been declared
effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule
462(b). For purposes of this Agreement, "Effective Time" with
respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has
advised the Representatives that it does not propose to amend
such registration statement, the date and time as of which
such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement, the
date and time as of which such registration statement, as
amended by such amendment or post-effective amendment, as the
case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to
the execution and delivery of this Agreement but the Company
has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration
statement means the date and time as of which such
registration statement is filed and becomes effective pursuant
to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration
statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended
at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
"Additional Registration Statement". The Initial Registration
Statement and the Additional Registration Statement are herein
referred to collectively as the "Registration Statements" and
individually as a "Registration Statement". The form of
prospectus relating to the Offered Securities, as first filed
with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is
hereinafter referred to as the "Prospectus". No document has
been or will be prepared or distributed in reliance on Rule
434 under the Act.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and
the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the
requirements of the Act and the Rules and Regulations and did
not include, or will not include, any untrue statement of a
material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and (C) on the
date of this Agreement, the Initial Registration Statement
and, if the Effective Time of the Additional Registration
Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant
to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in
which the Prospectus is included, each Registration Statement
and the Prospectus will conform, in all respects to the
requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include,
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any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on
the Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act and the Rules
and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading, and no Additional
Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon
written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Texas, with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification.
(iv) Each subsidiary of the Company has been duly
incorporated and is an existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
power and authority (corporate and other) to own its
properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) Each of the Master Club, Hill Country Resort
Club, Xxxxx Lake Resort Club, Piney Shores Resort Club,
Villages Resort Club, The Villages Club, Holiday Hills Resort
Club, Ozark Mountain Resort Club, Holiday Hills Condominium
Association, Inc., The Bluffs at Holiday Hills Condominium
Association, Inc., The Lakes at Holiday Hills Condominium
Association, Inc., the Oaks at Holiday Hills Condominium
Association, Inc., The Pinnacle at Holiday Hills Condominium
Association, Inc., Ozark Mountain Condominium Association,
Inc., The Coves at Waters Bluff Condominium Association, Inc.,
Streamside at Ozark Mountain Condominium Association, Inc.,
Waters Bluff at Ozark Mountain Condominium Association, Inc.,
Xxxxx Lake Ranch Association, The Villages Home Owners'
Association, Inc., Holiday Hills Property Owners Association,
Inc., The Ozark Mountain Boat Dock Association, Timber Creek
Resort Club, Fox River Resort Club, Oak N' Spruce Resort Club,
Oak N' Spruce Club and Silverleaf Las Vegas Resort Club
(collectively, the "Clubs") has been duly formed and is an
existing nonprofit corporation or unincorporated association
and is in good standing under the laws of the jurisdiction of
its formation, with power and authority to own its properties
and conduct its business as described in the Prospectus; and
each Club is duly qualified to do business and in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification.
(vi) The Offered Securities and all other
outstanding shares of capital stock of the Company have been
duly authorized; all outstanding shares of capital stock of
the Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on
each Closing Date (as defined below), such Offered Securities
will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Securities.
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(vii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the
Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection
with this offering.
(viii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the
Company and any person granting such person the right to
require the Company to file a registration statement under the
Act with respect to any securities of the Company owned or to
be owned by such person or to require the Company to include
such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
(ix) The Offered Securities have been approved for
listing on The New York Stock Exchange subject to notice of
issuance.
(x) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
and sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and such as may
be required under state securities laws.
(xi) The execution, delivery and performance of
this Agreement, and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having
jurisdiction over the Company, any subsidiary of the Company
or any Club or any of their properties, or any agreement or
instrument to which the Company, any such subsidiary or any
such Club is a party or by which the Company, any such
subsidiary or any such Club is bound or to which any of the
properties of the Company, any such subsidiary or any such
Club is subject, or the charter or by-laws of the Company, any
such subsidiary or any such Club, and the Company has full
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(xii) This Agreement has been duly authorized,
executed and delivered by the Company.
(xiii) The consolidated capitalization as of
December 31, 1997, of the Company is as set forth in the
Prospectus under the caption "Capitalization." The
consolidated capitalization as of December 31, 1997, of the
Company as adjusted for this offering and the Note Offering
(as defined in the Prospectus) is as set forth in the
Prospectus under the caption "Capitalization." All of the
issued and outstanding shares of capital stock of the Company
and each of its subsidiaries have been duly authorized and are
validly issued, fully paid and nonassessable. The Company
owns, either directly or indirectly, all of the outstanding
capital stock of each of its subsidiaries, free and clear of
any liens, restrictions on transfer, agreements, voting trusts
or other defects of title whatsoever. The issuance of the
Offered Securities will not be subject to preemptive or other
similar rights. Except as disclosed in the Prospectus and
other than grants of stock options to employees of the Company
pursuant to existing employee stock option plans approved by
the Board of Directors of the Company, there are no
outstanding subscriptions, rights, warrants, options, calls,
convertible or exchangeable securities or commitments of sale
related to or entitling any person to purchase or otherwise to
acquire any shares of the capital stock of, or other ownership
interests in, the Company or any of its subsidiaries;
(xiv) Deloitte & Touche LLP are independent public
accountants with respect to the Company as required by the
Act.
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(xv) Except as disclosed in the Prospectus, the
Company, its subsidiaries and the Clubs have good and
marketable title to all real properties and all other
properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect
the value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the
Prospectus, the Company, its subsidiaries and the Clubs hold
any leased real or personal property under valid and
enforceable leases with no exceptions that would materially
interfere with the use made or to be made thereof by them.
(xvi) The Company, its subsidiaries and the Clubs
possess adequate certificates, authorities or permits issued
by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit
that, if determined adversely to the Company, any of its
subsidiaries or any of the Clubs, would individually or in the
aggregate have a material adverse effect on the Company and
its subsidiaries taken as a whole.
(xvii) No labor dispute with the employees of the
Company, any subsidiary or any Club exists or, to the
knowledge of the Company, is imminent that might have a
material adverse effect on the Company and its subsidiaries
taken as a whole.
(xviii) The Company, its subsidiaries and the Clubs
own, possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual
property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not
received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company,
any of its subsidiaries or the Clubs, would individually or in
the aggregate have a material adverse effect on the Company
and its subsidiaries taken as a whole.
(xix) Except as disclosed in the Prospectus,
neither the Company, any of its subsidiaries nor any Club is
in violation of any statute, any rule, regulation, decision or
order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental
laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is
liable for any off-site disposal or contamination pursuant to
any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have
a material adverse effect on the Company and its subsidiaries
taken as a whole; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xx) Except as disclosed in the Prospectus, there
are no pending actions, suits, proceedings, inquiries,
arbitrations, investigations, litigation or governmental
proceedings against or affecting the Company, any of its
subsidiaries, any of the Clubs or any of their respective
properties that, if determined adversely to the Company, any
of its subsidiaries or any of the Clubs, would individually or
in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries
taken as a whole, or would materially and adversely affect the
ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions,
suits, proceedings, inquiries, arbitrations, investigations,
litigation or governmental proceedings are threatened or, to
the Company's knowledge, contemplated. None of the Company,
any of its subsidiaries or any of the Clubs is a party or
subject to the provisions of any injunction, judgment, decree
or order of any court, regulatory body, administrative agency
or other governmental body which would individually or in the
aggregate have a material adverse effect on the Company and
its subsidiaries taken as a whole.
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(xxi) The financial statements included in each
Registration Statement and the Prospectus present fairly the
financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States
applied on a consistent basis; and the schedules included in
each Registration Statement present fairly the information
required to be stated therein and the assumptions used in
preparing the pro forma financial information included in each
Registration Statement and the Prospectus provide a reasonable
basis for presenting the significant effects directly
attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect
the proper application of those adjustments to the
corresponding historical financial statement amounts.
(xxii) Except as disclosed in the Prospectus, since
the date of the latest audited financial statements included
in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material
adverse change, in the condition (financial or other),
business, properties or results of operations of the Company
and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been
no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xxiii) The Company is not an open-end investment
company, unit investment trust face-amount certificate
company, or any other investment company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "Investment Company Act");
and the Company is not and, after giving effect to the
offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act.
(xxiv) Except as disclosed in the Prospectus, the
Company, its subsidiaries and the Clubs have and maintain
liability, property and casualty insurance (insured by
insurers of recognized financial responsibility) in favor of
the Company, its subsidiaries and the Clubs with respect to
each of the timeshare resorts operated by the Company,
including the New Resorts (as defined in the Prospectus)
(collectively, the "Resorts") in an amount and on such terms
as is reasonable and customary for businesses of the type
proposed to be conducted by the Company, its subsidiaries and
the Clubs, including, among other things, insurance against
theft, damage, destruction and acts of vandalism. None of the
Company, any of its subsidiaries or any of the Clubs has
received from any insurance company notice of any material
defects or deficiencies affecting the insurability of any such
Resort.
(xxv) Title insurance in favor of the Company, is
in force with respect to those portions of each of the Resorts
specified in Section 6(h)(ii) in an amount previously
disclosed to the Representatives.
(xxvi) Except as disclosed in the Prospectus, all
entitlements necessary for development of the Resorts have
been obtained, and no further governmental or regulatory
approvals are necessary for additional development of the
Resorts.
(xxvii) The mortgages and deeds of trust encumbering
the Resorts are not convertible and such mortgages and deeds
of trust are not cross-defaulted or cross-collateralized to
any Resort not owned directly or indirectly by the Company.
(xxviii) No environmental engineering firm which
prepared Phase I environmental assessment reports (or
other similar reports) with respect to the Resorts as set
forth in the Registration Statement was employed for such
purpose on a contingent basis or has any substantial interest
in the Company, any of its subsidiaries or any Club.
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(xxix) Except as disclosed in the Prospectus, the
Company, its subsidiaries and the Clubs are in compliance with
all federal, state, local and foreign laws and regulations
regarding the marketing, advertising, offers to sell and sales
of vacation intervals in each state in which the Company, its
subsidiaries and the Clubs are doing business or offering or
selling vacation intervals, including but not limited to the
Federal Trade Commission Act, Regulation Z (the
truth-in-lending act), Equity Opportunity Credit Act and
Regulation B, Interstate Land Sales Full Disclosure Act, Real
Estate Standards Practices Act, Telephone Consumer Protection
Act, Telemarketing and Consumer Fraud and Abuse Prevention
Act, Fair Housing Act and Civil Rights Acts of 1964 and 1968,
in each case except as would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
Except as disclosed in the Prospectus, the Company, its
subsidiaries and the Clubs have filed all required documents
and supporting information in compliance with federal, state,
local and foreign laws and regulations, and the Company, its
subsidiaries and the Clubs are in compliance with all
licensure, anti-fraud, telemarketing, price, gift and
sweepstakes and labor laws to which they are or may become
subject, in each case except as would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole. The Company, its subsidiaries and the Clubs have all
permits and licenses which are required to sell vacation
intervals in each state and foreign jurisdiction where they
conduct business, in each case except as would not have a
material adverse effect on the Company and its subsidiaries
taken as a whole.
(xxx) The timeshare interests sold by the Company
("Vacation Intervals") do not constitute "securities" under
the Act. Neither the offer, the sale nor the issuance of
Vacation Intervals by the Company or any of the subsidiaries
required registration under the Act or under the securities
laws of the state of Texas, Missouri, Illinois, Massachusetts,
Nevada or New York or under any other state securities laws
nor does the fact that such interests are outstanding require
registration under the Exchange Act.
(xxxi) The execution, delivery, and performance of
each of the documents relating to the purchases (the "New
Property Purchases") of the properties in Galveston, Texas, De
Xxxx, Missouri, Sheridan, Illinois, Berkshire, Massachusetts,
Las Vegas, Nevada (the "New Properties") was duly and validly
authorized by the Company, and each such document relating to
the New Property Purchases was duly executed and delivered by
the Company and constitutes the legally valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms. The execution, delivery and
performance of the documents relating to the New Property
Purchases by the Company and the consummation of the
transactions contemplated thereby (A) did not require any
consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body,
administrative agency or other governmental body, agency or
official or conflict with or constitute a breach of, or a
default under, the certificate or articles of incorporation,
bylaws, or other organizational documents, of the Company and
(B) did not conflict with or constitute a breach of, or a
default under, any material agreement, indenture, lease or
other instrument to which the Company is a party or by which
the Company or any of its properties may be bound, or violate
any statute, law, regulation or filing or judgment,
injunction, order or decree applicable to the Company or any
of its properties, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of
the Company pursuant to the terms of any agreement or
instrument to which any of them is a party or by which any of
them may be bound or to which any of the property or assets of
any of them is subject.
(xxxii) No person has an option or right of first
refusal to purchase all or part of any of the Resorts or any
interest therein. Each of the Resorts complies with all
applicable codes, laws and regulations (including, without
limitation, building and zoning codes and laws relating to
handicapped access), except as would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole. Except as disclosed in the Prospectus, the Company has
no knowledge of any pending or threatened condemnation
proceedings, zoning changes, or other proceedings or actions
that will in any manner affect the size of, number of Vacation
Intervals planned for, the use of any improvements on, or
access to, the Resorts.
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(xxxiii) The Company will apply the net proceeds from
the offering of the Offered Securities in the manner set forth
under "Use of Proceeds" in the Prospectus.
(xxxiv) The Company has not taken, nor will any it
take, directly or indirectly, any action designed to
materially violate or cause a material violation of Regulation
M under the Act with respect to the offering of the Offered
Securities hereby.
(xxxv) Each certificate signed by any officer of the
Company and delivered to the Underwriters or counsel for the
Underwriters at Closing hereunder shall be deemed to be a
representation and warranty by the Company to the Underwriters
as to the matters covered thereby.
(b) The Selling Shareholder represents and warrants to, and
agrees with, the several Underwriters that:
(i) The Selling Shareholder has and on each Closing
Date hereinafter mentioned will have valid and unencumbered
title to the Offered Securities to be delivered by the Selling
Shareholder on such Closing Date and full right, power and
authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by
the Selling Shareholder on such Closing Date hereunder; and
upon the delivery of and payment for the Offered Securities on
each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities
to be delivered by the Selling Shareholder on such Closing
Date.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all respects to the requirements of the Act and
the Rules and Regulations and did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date
of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all
respects to the requirements of the Act and the Rules and
Regulations did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading,
and (C) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution
and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all
respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact
or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading. The two preceding sentences do not apply to
statements in or omissions from a Registration Statement or
the Prospectus based upon written information furnished to the
Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed
that the only such information is that described as such in
Section 7(c).
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3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and the
Selling Shareholder agree, severally and not jointly, to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company and the Selling Shareholder, at a purchase price of
$_____ per share, the respective numbers of shares of Firm Securities set forth
below the caption "Company" or "Selling Shareholder", as the case may be, and
opposite the name of such Underwriter in Schedule A hereto.
The Company and the Selling Shareholder will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to Credit
Suisse First Boston Corporation ("CSFBC") drawn to the order of Silverleaf
Resorts, Inc., account number ___________, and to the order of Xxxxxx X. Xxxx,
account number ___________ , at the office of counsel for the Underwriters at
9:00 A.M. (New York time), on ________ __, 1998, at 9:00 A.M., New York time,
on ________, 1998, or at such other time not later than seven full business
days thereafter as CSFBC and the Company determine, such time being herein
referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The certificates for the Firm Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the office of CSFBC, 0 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, X.X. 00000,
at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Selling
Shareholder from time to time not more than 30 days subsequent to the date of
the Prospectus, the Underwriters may purchase all or less than all of the
Optional Securities at the purchase price per Security to be paid for the Firm
Securities. The Selling Shareholder agrees to sell to the Underwriters the
number of shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Optional
Securities. Such Optional Securities shall be purchased from the Selling
Shareholder for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the
Firm Securities. No Optional Securities shall be sold or delivered unless the
Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion thereof
may be exercised from time to time and to the extent not previously exercised
may be surrendered and terminated at any time upon notice by CSFBC to the
Selling Shareholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Selling Shareholder will
deliver the Optional Securities being purchased on each Optional Closing Date
to the Representatives for the accounts of the several Underwriters, against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to
CSFBC drawn to the order of Xxxxxx X. Xxxx, account number ___________ at the
office of Meadows, Owens, Collier, Reed, Cousins & Blau, L.L.P., 0000
Xxxxxxxxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx, XX 00000. The certificates for the
Optional Securities being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as CSFBC
requests upon reasonable notice prior to such Optional Closing Date and will be
made available for checking and packaging at the office of CSFBC, 0 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000 at a reasonable time in advance of such Optional
Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company and the Selling Shareholder.
The Company and the Selling Shareholder agree with the several Underwriters
that:
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(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement,
the Company will file the Prospectus with the Commission pursuant to
and in accordance with subparagraph (1) (or, if applicable and if
consented to by CSFBC, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a
portion of the Offered Securities under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without CSFBC's consent; and the Company will also
advise CSFBC promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of a
Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, any event occurs
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company will promptly notify CSFBC of such event and
will promptly prepare and file with the Commission, at its own
expense, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
Neither CSFBC's consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of
the Additional Registration Statement) which will satisfy the
provisions of Section 11(a) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth
fiscal quarter.
(e) The Company will furnish to the Representatives
copies of each Registration Statement (four of which will be signed
and will include all exhibits), each related preliminary prospectus,
and, so long as a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
CSFBC requests. The Prospectus shall be so furnished on or prior to
3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the Effective Time of
the Initial Registration Statement. All other documents shall be so
furnished as soon as available. The Company and the Selling
Shareholder will pay the expenses of printing and distributing to the
Underwriters all such documents.
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(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon request, to each
of the other Underwriters, as soon as practicable after the end of
each fiscal year, a copy of its annual report to shareholders for such
year; and the Company will furnish to the Representatives (i) as soon
as available, a copy of each report and any definitive proxy statement
of the Company filed with the Commission under the Securities Exchange
Act of 1934 or mailed to shareholders, and (ii) from time to time,
such other information concerning the Company as CSFBC may reasonably
request.
(h) The Company and the Selling Shareholder will pay all
expenses incidental to the performance of the obligations of the
Company and the Selling Shareholder, as the case may be, under this
Agreement, and will jointly and severally, reimburse the Underwriters
(if and to the extent incurred by them) for any filing fees and other
expenses (including fees and disbursements of counsel) incurred by
them in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident
to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. of the Offered Securities, for
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities, for
any transfer taxes on the sale by the Selling Shareholder of the
Offered Securities to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including
any amendments and supplements thereto) to the Underwriters.
(i) For a period of 180 days after the date of the public
offering of the Offered Securities, the Company, the Selling
Shareholder and certain other shareholders of the Company will not
offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any additional shares of its
Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC except grants of employee
stock options pursuant to the terms of a plan in effect on the date
hereof, issuances of Securities pursuant to the exercise of such
options or the exercise of any other employee stock options
outstanding on the date hereof or issuances of Securities pursuant to
the Company's dividend reinvestment plan.
(j) The Selling Shareholder agrees to deliver to CSFBC,
attention: Transactions Advisory Group on or prior to the First
Closing Date a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified
by Treasury Department regulations in lieu thereof).
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Shareholder herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the date of delivery thereof (which, if the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this
Agreement or, if the Effective Time of the Initial Registration
Statement is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment or
post-effective amendment to the registration statement to be filed
shortly prior
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12
to such Effective Time), of each of Deloitte & Touche LLP confirming
that they are independent public accountants within the meaning of the
Act and the applicable published Rules and Regulations thereunder and
stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included or incorporated by
reference in the Registration Statements comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(A) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in indebtedness of the Company and its
consolidated subsidiaries or, at the date of the
latest available balance sheet read by such
accountants, there was any decrease in consolidated
total assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(B) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated revenues or in the total
or per share amounts of consolidated net income,
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter;
(ii) they have read the unaudited pro forma
information included in the Registration Statement and made
inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified
procedures, and nothing came to their attention that caused
them to believe that the unaudited pro forma financial data
included in the Registration Statements do not comply as to
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of those statements; and
(iii) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration is subsequent to
such execution and delivery, "Registration Statements" shall mean the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "Prospectus" shall mean the prospectus included in the
Registration Statements.
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(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time
of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company, the Selling
Shareholder or the Representatives, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority
in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or limitation of
trading in securities generally on the New York Stock Exchange or the
Nasdaq Stock Market's National Market, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal, New York or Texas authorities; or (v) any outbreak or
escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(d) The Representatives shall have received an opinion,
dated as of such Closing Date, of Meadows, Owens, Collier, Reed,
Cousins & Blau, L.L.P., counsel for the Company and the Selling
Shareholder, to the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification;
(ii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
shareholders of the Company have no preemptive rights with
respect to the Securities;
(iii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the
Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
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securities being registered pursuant to any other registration
statement filed by the Company under the Act;
(iv) The Company is not an open-end investment
company, unit investment trust, face-amount certificate
company or any other form of investment company that is or is
required to be registered under Section 8 of the Investment
Company Act; and the Company is not and, after giving effect
to the offering and sale of the Initial Offered Securities and
the application of the proceeds thereof as described in the
Prospectus, will not be (A) an "investment company" as defined
in the Investment Company Act or (B) a closed-end investment
company required to be registered, but not registered under
the Investment Company Act;
(v) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company or the
Selling Shareholder, except such as have been obtained and
made under the Act and such as may be required under state
securities laws;
(vi) The execution, delivery and performance of
this Agreement and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Company or any subsidiary of the Company or any of their
properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject,
or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(vii) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration
Statement (if any) was filed and became effective under the
Act as of the date and time (if determinable) specified in
such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may be), and,
to the best of the knowledge of such counsel, no stop order
suspending the effectiveness of a Registration Statement or
any part thereof has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated
under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act and
the Rules and Regulations; such counsel have no reason to
believe that any part of a Registration Statement or any
amendment thereto, as of its effective date or as of such
Closing Date, contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; the descriptions
in the Registration Statements and Prospectus of statutes,
rules, regulations, orders, injunctions, decrees, judgments,
legal and governmental proceedings and contracts and other
documents are accurate and complete and fairly present the
information required to be shown; and such counsel do not know
of any legal or governmental proceedings required to be
described in a Registration Statement or the Prospectus which
are not described as required or of any contracts or documents
of a character required to be described in a Registration
Statement or the Prospectus or to be filed as exhibits to a
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statements or the
Prospectus;
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(viii) This Agreement has been duly authorized,
executed and delivered by the Company;
(ix) The Selling Shareholder had valid and
unencumbered title to the Offered Securities delivered by the
Selling Shareholder on such Closing Date and had full right,
power and authority to sell, assign, transfer and deliver the
Offered Securities delivered by the Selling Shareholder on
such Closing Date hereunder; and the several Underwriters have
acquired valid and unencumbered title to the Offered
Securities purchased by them from the Selling Shareholder on
such Closing Date hereunder;
(x) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required to be obtained or made by the Selling
Shareholder for the consummation of the transactions
contemplated by this Agreement in connection with the sale of
the Offered Securities sold by the Selling Shareholder, except
such as have been obtained and made under the Act and such as
may be required under state securities laws;
(xi) The execution, delivery and performance of
this Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any
of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental
agency or body or any court having jurisdiction over the
Selling Shareholder or any of his properties or any agreement
or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder is bound or to which any of
the properties of the Selling Shareholder is subject;
(xii) This Agreement has been duly authorized,
executed and delivered by the Selling Shareholder;
(xiii) Except as disclosed in the Prospectus, the
Company, its subsidiaries and the Clubs have obtained the
material approvals and permits from all federal, state and
local regulators necessary to offer for sale and sell
timeshare interests and offer purchase money financing in
connection with such sales in accordance with the applicable
laws and regulations governing the marketing and sale of
timeshare interests in real property;
(xiv) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters (as
defined below), all of the permits and/or approvals issued by
regulators of states other than the state where each
applicable Resort is located ("Foreign State") for the
offering for sale and sale of timeshare interests in such
Resort constitute the material approvals and permits necessary
to be issued by such Foreign State to permit the offering for
sale and sale of timeshare interests in such Resort in
accordance with the laws and regulations of the Foreign State
specifically governing the offering for sale and sale of
timeshare interests in real property located outside of the
Foreign State;
(xv) Except as disclosed in the Prospectus, to
such counsel's knowledge and based upon its review of
certificates and letters from federal, state and local
regulators, the Company and other pertinent parties
(collectively, "Reliance Certificates and Letters"), except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts;
(xvi) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no real estate or timeshare related governmental
actions, governmental suits or governmental proceedings
pending or threatened against the Company with respect to the
business and property relating to the Resorts except (a) those
which have been
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disclosed in the Registration Statement and (b) those which
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(xvii) The choice of law provisions set forth in
Section 14 hereof will be recognized by the courts of the
State of Texas; and
(xviii) The vacation intervals do not constitute
"securities" under the Act. Neither the offer nor the sale of
timeshare interests by the Company or any of its subsidiaries
required registration under the Act or under the securities
laws of the state of Texas or under the state securities laws
of any other state in which the Company is currently qualified
to do business, nor does the fact that such interests are
outstanding require registration under the Exchange Act.
Meadows, Owens, Collier, Reed, Cousins & Blau, L.L.P. may rely
upon the opinion of Armstrong, Teasdale, Schlafly & Xxxxx for
certain matters regarding Missouri law, on the opinion of
__________ for certain matters regarding Illinois law, on the
opinion of __________ for certain matters regarding
Massachusetts law, on the opinion of __________ for certain
matters regarding Nevada law and on the opinion of __________
for certain matters regarding New York law.
(e) The Representatives shall have received an opinion,
dated such Closing Date, of Armstrong, Teasdale, Schlafly, Xxxxx &
Xxxxx, counsel for the Company, to the effect that:
(i) The execution, delivery and performance of
this Agreement and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under,
any Missouri statute, any rule, regulation or order of any
governmental agency or body or any court within the State of
Missouri having jurisdiction over the Company or any
subsidiary of the Company or any of their properties;
(ii) The Company, its subsidiaries and the Clubs
have obtained the material approvals and permits from all
federal, state and local regulators necessary to offer for
sale and sell in Missouri timeshare interests and offer
purchase money financing in connection with such sales in
accordance with the applicable laws and regulations governing
the marketing and sale of timeshare interests in real
property;
(iii) All of the permits and/or approvals issued by
Missouri regulators for the offering for sale and sale of
timeshare interests in a Resort located outside of Missouri
constitute the material approvals and permits necessary to
permit the offering for sale and sale of timeshare interests
in such Resort in accordance with the laws and regulations of
Missouri specifically governing the offering for sale and sale
of timeshare interests in real property located outside of
Missouri;
(iv) To such counsel's knowledge and based upon
its review of Reliance Certificates and Letters, except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts; and
(v) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no real estate or timeshare related governmental
actions, governmental suits or governmental proceedings
pending or threatened against the Company with respect to the
business and property relating to the Resorts except (a) those
which have been disclosed in the Registration Statement, and
(b) those which would not have a material adverse effect on
the Company and its subsidiaries taken as a whole.
(f) The Underwriters shall have received an opinion,
dated the Closing Date, of ____________________, counsel for the
Company, to the effect that:
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17
(i) The execution, delivery and performance of
the Operative Documents and the issuance and sale of the
Offered Securities and the Subsidiary Guarantees will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any Illinois
statute, any rule, regulation or order of any governmental
agency or body or any court within the State of Illinois
having jurisdiction over the Company or any Subsidiary
Guarantor or any of their properties;
(ii) The Company, the Subsidiary Guarantors and
the Clubs have obtained the material approvals and permits
from all federal, state and local regulators necessary to
offer for sale and sell in Illinois timeshare interests and
offer purchase money financing in connection with such sales
in accordance with the applicable laws and regulations
governing the marketing and sale of timeshare interests in
real property;
(iii) All of the permits and/or approvals issued by
Illinois regulators for the offering for sale and sale of
timeshare interests in a Resort located outside of Illinois
constitute the material approvals and permits necessary to
permit the offering for sale and sale of timeshare interests
in such Resort in accordance with the laws and regulations of
Illinois specifically governing the offering for sale and sale
of timeshare interests in real property located outside of
Illinois;
(iv) To such counsel's knowledge and based upon
its review of Reliance Certificates and Letters, except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts; and
(v) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no legal or governmental actions, suits or
proceedings pending or threatened against the Company with
respect to the business and property relating to the Resorts
except (a) those which have been disclosed in the Prospectus
and (b) those which would not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(g) The Underwriters shall have received an opinion,
dated the Closing Date, of ____________________, counsel for the
Company, to the effect that:
(i) The execution, delivery and performance of
the Operative Documents and the issuance and sale of the
Offered Securities and the Subsidiary Guarantees will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any
Massachusetts statute, any rule, regulation or order of any
governmental agency or body or any court within the State of
Massachusetts having jurisdiction over the Company or any
Subsidiary Guarantor or any of their properties;
(ii) The Company, the Subsidiary Guarantors and
the Clubs have obtained the material approvals and permits
from all federal, state and local regulators necessary to
offer for sale and sell in Massachusetts timeshare interests
and offer purchase money financing in connection with such
sales in accordance with the applicable laws and regulations
governing the marketing and sale of timeshare interests in
real property;
(iii) All of the permits and/or approvals issued by
Massachusetts regulators for the offering for sale and sale of
timeshare interests in a Resort located outside of
Massachusetts constitute the material approvals and permits
necessary to permit the offering for sale and sale of
timeshare interests in such Resort in accordance with the laws
and regulations of Massachusetts specifically governing the
offering for sale and sale of timeshare interests in real
property located outside of Massachusetts;
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(iv) To such counsel's knowledge and based upon
its review of Reliance Certificates and Letters, except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts; and
(v) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no legal or governmental actions, suits or
proceedings pending or threatened against the Company with
respect to the business and property relating to the Resorts
except (a) those which have been disclosed in the Prospectus
and (b) those which would not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(h) The Underwriters shall have received an opinion,
dated the Closing Date, of ____________________, counsel for the
Company, to the effect that:
(i) The execution, delivery and performance of
the Operative Documents and the issuance and sale of the
Offered Securities and the Subsidiary Guarantees will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any Nevada
statute, any rule, regulation or order of any governmental
agency or body or any court within the State of Nevada having
jurisdiction over the Company or any Subsidiary Guarantor or
any of their properties;
(ii) The Company, the Subsidiary Guarantors and
the Clubs have obtained the material approvals and permits
from all federal, state and local regulators necessary to
offer for sale and sell in Nevada timeshare interests and
offer purchase money financing in connection with such sales
in accordance with the applicable laws and regulations
governing the marketing and sale of timeshare interests in
real property;
(iii) All of the permits and/or approvals issued by
Nevada regulators for the offering for sale and sale of
timeshare interests in a Resort located outside of Nevada
constitute the material approvals and permits necessary to
permit the offering for sale and sale of timeshare interests
in such Resort in accordance with the laws and regulations of
Nevada specifically governing the offering for sale and sale
of timeshare interests in real property located outside of
Nevada;
(iv) To such counsel's knowledge and based upon
its review of Reliance Certificates and Letters, except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts; and
(v) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no legal or governmental actions, suits or
proceedings pending or threatened against the Company with
respect to the business and property relating to the Resorts
except (a) those which have been disclosed in the Prospectus
and (b) those which would not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(i) The Underwriters shall have received an opinion,
dated the Closing Date, of ____________________, counsel for the
Company, to the effect that:
(i) The execution, delivery and performance of
the Operative Documents and the issuance and sale of the
Offered Securities and the Subsidiary Guarantees will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any New York
statute, any rule, regulation or order of any governmental
agency or body or any court
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within the State of New York having jurisdiction over the
Company or any Subsidiary Guarantor or any of their
properties;
(ii) The Company, the Subsidiary Guarantors and
the Clubs have obtained the material approvals and permits
from all federal, state and local regulators necessary to
offer for sale and sell in New York timeshare interests and
offer purchase money financing in connection with such sales
in accordance with the applicable laws and regulations
governing the marketing and sale of timeshare interests in
real property;
(iii) To such counsel's knowledge and based upon
its review of Reliance Certificates and Letters, except as
disclosed in the Prospectus, the Company has not received any
notice from any regulatory authority that it is in violation
of any applicable federal or state law or regulation regarding
the offering for sale and sale of timeshare interests in the
Resorts, the violation of which would have a material adverse
effect on the ownership or operation of the Resorts; and
(iv) To such counsel's knowledge and based upon
such counsel's review of Reliance Certificates and Letters,
there are no legal or governmental actions, suits or
proceedings pending or threatened against the Company with
respect to the business and property relating to the Resorts
except (a) those which have been disclosed in the Prospectus
and (b) those which would not have a material adverse effect
on the Company and its subsidiaries taken as a whole.
(j) The Representatives shall have received from Xxxxxx &
Xxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other related matters
as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, Xxxxxx & Xxxxxxx may rely as to the incorporation of the
Company and all other matters governed by Texas law upon the opinion
of Meadows, Owens, Collier, Reed, Cousins & Blau, L.L.P. referred to
above.
(k) The Representatives shall have received a
certificate, dated as of such Closing Date, of the Chief Executive
Officer and a principal financial or accounting officer of the Company
in which such officers, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission;
the Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing
fee in accordance with Rule 111(a) or (b) under the Act, prior to the
time the Prospectus was printed and distributed to any Underwriter;
and, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(l) The Representatives shall have received letters,
dated as of such Closing Date, of Deloitte & Touche LLP and which meet
the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(m) The Representatives shall have received on or before
the First Closing Date with respect to each Resort:
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(i) A standard ALTA Owner's Title Insurance
Policy naming the Company or its predecessor- in-interest as
named insured and insuring such party that it owns fee title
to the real property described therein in an amount of the
original purchase price thereof, subject only to any material
exceptions to title as are described in the Prospectus, and
such exceptions which do not adversely affect the current or
potential use to be made of the Resort (the "Permitted
Exceptions");
(ii) A recent Title Commitment for a standard ALTA
Owner's Title Insurance Policy issued by a reputable title
insurance company reasonably acceptable to the Representatives
(the "Title Company") and showing fee title to the property
described therein vested in the Company, subject only to the
Permitted Exceptions. Such Title Commitment(s) for each of
the Resorts shall cover at least the following portions of
each of the Resorts: amenity areas, current areas under
development and those areas of each of the Resorts which the
Company intends to develop and which are necessary to
construct the projected units described in the Prospects;
(iii) Policies or certificates of insurance
relating to the Resort evidencing coverages and in amounts
customarily obtained by owners of similar Resorts, together
with a letter of opinion from a nationally or regionally
recognized insurance broker approved by the Representatives
stating, in substance, that the coverage limits and companies
underwriting such insurance for the Company are within the
realm of reasonableness given the Company's business,
operations and claims history;
(iv) UCC, judgment and tax lien searches
confirming that the personal property comprising a part of the
Resort is subject to no liens other than Permitted Exceptions;
(v) An opinion letter from an architectural firm
reasonably acceptable to the Representatives stating in
substance that (1) such firm designed and has overseen the
construction of all improvements at the Resorts, (2) such firm
is generally aware of the condition of such improvements, (3)
except for ordinary wear and tear there are no existing
material structural defects to any of the improvements
(including foundation or roof) at the Resorts and (4) the
Company and the Improvements at the Resorts are in material
compliance with federal and state regulations relating to
access by the disabled, including the Americans with
Disabilities Act;
(vi) If such Resort is subject to a mortgage, deed
of trust or similar financing (an "Existing Mortgage") which,
as described in the Prospectus, is to be repaid with the
proceeds of the offering, a letter dated not earlier than 10
days prior to the First Closing Date from the holder of such
Existing Mortgage indicating that the mortgagor or grantor
under such Existing Mortgage is not then in default and
indicating the principal amount required to satisfy all
amounts then secured by such Existing Mortgage and the
additional amount required for each day after the date of such
letter necessary to satisfy all obligations secured thereby,
together with all documentation and consents necessary to
permit the repayment of all amounts owed and the release of
the Existing Mortgage; and if such Resort is subject to an
Existing Mortgage which, as described in the Prospectus, is to
remain of record after the offering, a letter dated not
earlier than 10 days prior to the First Closing Date from the
holder of such Existing Mortgage indicating that the mortgagor
or grantor under such Existing Mortgage is not then in default
and indicating the total principal amount due under the
Existing Mortgage; and
(vii) A recent Phase I Environmental Report in form
and substance acceptable to the Representatives.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters
hereunder, whether in respect of an Optional Closing Date or otherwise.
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21
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below.
(b) The Selling Shareholder will indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under the Act
or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Shareholder will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below.
(c) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company and the Selling Shareholder against any
losses, claims, damages or liabilities to which the Company and the Selling
Shareholder may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and the Selling Shareholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the third from last paragraph at the bottom of the cover page
concerning the terms of the offering by the Underwriters, the legend concerning
over-allotments and stabilizing on the inside front cover page, the concession
and reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the fifth paragraph under the
caption "Underwriting".
(d) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought
21
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against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or
(c) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Shareholder on the one hand
and the Underwriters on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Shareholder on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Shareholder
bear to the total underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholder or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling
Shareholder under this Section shall be in addition to any liability which the
Company and the Selling Shareholder may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase
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on such Closing Date, CSFBC may make arrangements satisfactory to the Company
and the Selling Shareholder for the purchase of such Offered Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder,
to purchase the Offered Securities that such defaulting Underwriters agreed but
failed to purchase on such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of shares of Offered Securities with respect
to which such default or defaults occur exceeds 10% of the total number of
shares of Offered Securities that the Underwriters are obligated to purchase on
such Closing Date and arrangements satisfactory to CSFBC, the Selling
Shareholder and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholder, except as provided in Section 9
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Shareholder, of the Company or its officers and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the Selling
Shareholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If this Agreement is terminated pursuant to
Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant
to Section 5 and the respective obligations of the Company, the Selling
Shareholder and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Section 2 and all obligations under Section 5 shall also
remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 6(c), the Company and
the Selling Shareholder will, jointly and severally, reimburse the Underwriters
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives, c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment
Banking Department--Transactions Advisory Group, or, if sent to the Company or
the Selling Shareholder, will be mailed, delivered or telegraphed and confirmed
to it at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000, Attention: Xxxxxx
X. Xxxx, with a copy to Xxxxxx Xxx Xxxxxxx, Esq., Meadows, Owens, Collier,
Reed, Cousins & Blau, L.L.P., 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000;
provided, however, that any notice to an Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives jointly or by CSFBC will be
binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
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The Company and the Selling Shareholder hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives
understanding of our agreement, kindly sign and return to the Company one of
the counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Shareholder and the several Underwriters in accordance
with its terms.
Very truly yours,
SILVERLEAF RESORTS, INC.
By
-----------------------------------
Name: Xxx X. Xxxxxx
Title: Chief Financial Officer
XXXXXX X. XXXX
-----------------------------------
Xxxxxx X. Xxxx
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
Acting on behalf of itself and as the
Representative of the several
Underwriters.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
EVEREN SECURITIES, INC.
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
Name:
Title:
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SCHEDULE A
Number of Firm Number of Firm
Securities To Securities To
Be Purchased By: Be Sold By:
Underwriter Company Selling Shareholder
----------- ------- -------------------
Credit Suisse First Boston Corporation
------------------------------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
-----------------------------------
EVEREN Securities, Inc.
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Total 2,000,000 500,000
-------------------------------- ========= =======
26
