EXHIBIT 10.8.4
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT ("Agreement") is entered into as of the 15th
day of August, 1996, by and between RESORT CAPITAL CORPORATION, a Delaware
corporation ("Lender"), and SIGNATURE RESORTS, INC., a Maryland corporation
("Signature").
R E C I T A L S
A. Lender and Fall Creek Resort, L.P., a Georgia limited partnership
("Fall Creek"), entered into that Commitment Agreement dated as of May 21,
1993 pursuant to which Lender agreed to purchase certain portfolios of
promissory notes and mortgages then existing and thereafter arising from
sales by Fall Creek to individuals purchasing interval estates in specific
condominium parcels developed by Fall Creek as a time share condominium
project known as The Plantation at Fall Creek (the "Fall Creek Purchase")
for the purposes and upon the terms and conditions set forth therein (such
Commitment Agreement, together with any and all renewals, extensions,
amendments, replacements, restatements, supplements or modification,
whether now or hereafter existing, is hereinafter referred to collectively
as the "Fall Creek Commitment Agreement").
B. Pursuant to that Private Placement Memorandum dated as of May 28,
1996, Signature solicited and received the consent and agreement of the
general and limited partners of Fall Creek to exchange their respective
interests in Fall Creek for shares of common stock in Signature (the
"Consent Solicitation"). Pursuant to the Consent Solicitation, the general
and limited partners of Fall Creek have exchanged their respective
interests in such entities for shares of common stock in Signature.
Essentially simultaneously therewith, each of the general and limited
partners of Fall Creek were merged with and into Signature, and each of the
interests of the general and limited partners of Fall Creek were
transferred to Signature. As of the date of this Agreement, Signature
constitutes the surviving corporation of such interest transfers (the
"Signature Merger").
C. Signature and Lender now desire and intend by this Agreement to
confirm the rights, obligations and liabilities of Signature (as the
successor to Fall Creek), as the Seller under the Fall Creek Purchase and
the Fall Creek Commitment Agreement, and all documents and instruments
executed in connection therewith.
NOW, THEREFORE, in consideration of the foregoing Recitals and all
covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Lender and Signature hereby state, confirm and agree as
follows:
A G R E E M E N T
1. ASSUMPTION OF FALL CREEK LOAN.
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1.1 Definitions. Unless specifically defined herein, all initial
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capitalized terms used in this SECTION 1 shall have the same meaning as set
forth in the Fall Creek Commitment Agreement. The following terms shall
have the meanings ascribed to them below:
1.1.1 "Fall Creek Loan Documents" shall mean, collectively, the
Fall Creek Commitment Agreement, the Purchased Property, the Records,
all documents delivered in connection with each Portfolio purchase (as
defined and set forth in the Fall Creek Commitment Agreement),
together with any and all renewals, extensions, amendments,
replacements, restatements, supplements or modifications, whether now
or hereafter existing.
1.1.2 "Fall Creek Obligations" shall mean and refer to each and
every obligation, duty, covenant, undertaking and condition which Fall
Creek is required or has agreed to perform under the Fall Creek Loan
Documents, and each and every other obligation of Fall Creek under the
Fall Creek Commitment Agreement now or hereafter owing to Lender.
1.2 Assumption of Fall Creek Obligations. Signature hereby assumes
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all obligations of Fall Creek under the Fall Creek Loan Documents for the
payment of the Fall Creek Commitment Agreement and any and all other
indebtedness created or evidenced thereby and for the performance and
observance of all the covenants, provisions, representations, warranties
and agreements of the Seller under the Fall Creek Loan Documents as if
Signature were an original party thereto.
1.3 Consent by Lender. Lender hereby consents to the transfer to and
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assumption by Signature of all of the Fall Creek Obligations and Lender
hereby agrees from and after the date hereof to recognize Signature as the
"Seller" under the Fall Creek Loan Documents. Such consent shall not
constitute a consent to any further transfer or assignment of the Fall
Creek Obligations or for any other transfer, assignment or transaction for
which Lender's consent is required under the Fall Creek Loan Documents.
1.4 Representations, Warranties, Acknowledgments, Covenants and
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Agreements Relating to the Fall Creek Loan. As a material inducement to
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Lender to enter into this Agreement, and acknowledging Lender's reliance
upon the truth and accuracy thereof, and in addition to the
representations, warranties, acknowledgments, covenants and agreements set
forth in SECTION 2 below, Signature hereby represents, warrants,
acknowledges, covenants and agrees that:
1.4.1 The Fall Creek Obligations are just and owing.
1.4.2 The obligation of Signature to repay and perform the Fall
Creek Obligations is absolute, irrevocable and unconditional and there
exists no right of setoff or recoupment, counterclaim or defense of
any nature whatsoever to the payment and performance of the Fall Creek
Obligations.
1.4.3 Signature hereby ratifies, reaffirms, acknowledges and
agrees that the Fall Creek Obligations and the Fall Creek Loan
Documents represent the valid, enforceable and collectible obligations
of Signature and, as of the date hereof, there exists no claims or
defenses (personal or otherwise) whatsoever with respect to the Fall
Creek Obligations. Signature further acknowledges and represents that
no event has occurred and no condition exists that, after notice or
lapse or time, or both, would constitute a default under the Fall
Creek Loan Documents.
1.4.4 Signature and Lender acknowledge and agree that all terms,
conditions and provisions of the Fall Creek Loan Documents are
continued in full force and effect and remain unaffected and unchanged
except as may be modified or amended by this Agreement; this Agreement
in no way acts as a release or relinquishment of, and in no way
affects, the liens, security interests and rights created by or
arising under any of the Fall Creek Loan Documents or the priority
thereof. Such liens, security interests and rights are hereby
ratified, confirmed, renewed and extended in all respects.
1.5 Amendments and Modifications to Fall Creek Loan Documents. The
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Fall Creek Loan Documents are hereby amended and modified in the following
respects:
1.5.1 All references in the Fall Creek Loan Documents to the
term "Seller" shall hereinafter be deemed to mean and refer to
Signature.
1.5.2 Paragraph 6(a) of the Fall Creek Commitment Agreement is
hereby modified and restated in its entirety to read as follows:
"Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland and is qualified to
do business in the State of Missouri."
2. ADDITIONAL REPRESENTATIONS, WARRANTIES, ACKNOWLEDGMENTS, COVENANTS AND
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AGREEMENTS OF SIGNATURE.
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As a material inducement to Lender to enter into and grant the
consents set forth in this Agreement, and acknowledging Lender's reliance
upon the truth and accuracy thereof, and Signature's agreement to act in
accordance herewith, Signature hereby represents, warrants, acknowledges,
covenants and agrees that:
2.1 The Recitals set forth in this Agreement are true and correct.
2.2 This Agreement and all other documents and instruments executed
by Signature in connection herewith have been authorized by all necessary
action and, when executed, will be the legal, valid and binding obligations
of Signature enforceable against Signature in accordance with their
respective terms.
2.3 Signature's execution, delivery and performance of this Agreement
will not (a) violate any law, rule, regulation or court order to which
Signature is subject, (b) conflict with or result in a breach of
Signature's Articles of Incorporation or Bylaws or any agreement or
instrument to which Signature is a party or by which it or its properties
are bound, or (c) result in the creation or imposition of any lien,
security interest or encumbrance on any property, whether now owned or
hereafter acquired, other than the liens in favor of Lender.
2.4 Signature is a corporation, validly existing and in good standing
under the laws of the State of Maryland. Signature is, and will remain so
during any period of time it has any outstanding obligations to Lender,
qualified to do business and in good standing in each jurisdiction where
Signature is doing business or where the location or nature of the
properties or business of Signature make such qualification necessary.
2.5 Signature and its Related Entities (as hereinafter defined) shall
each maintain, during any period of time in which any of the Fall Creek
Obligations remain outstanding, separate internally-prepared financial
statements with respect to the separate operations of such entities and
each of its respective properties, notwithstanding that Signature and any
Related Entities may maintain consolidated financial statements for other
purposes.
2.6 Neither Signature nor any Related Entities have paid or shall pay
any secured or unsecured debts or obligations of the other, except to the
extent any such obligations also constitute direct, contractual obligations
of Signature or any Related Entity under a guarantee or otherwise.
2.7 Other than distributions to shareholders or partners and
repayment of bona fide debt owed to a Related Entity, Signature shall not
transfer any funds to or accept a transfer of any funds from any Related
Entity without contemporaneous written documentation clearly identifying
that the transfer constitutes a loan or capital investment and, if the
transfer is a loan, the specific repayment terms thereof.
2.8 Signature has not taken and shall not take any action or omit to
take any action that could reasonably be expected to cause its creditors or
the creditors of any Related Entity to be confused as to which entity the
creditor is dealing with.
2.9 Signature and all Related Entities were adequately capitalized as
of the date of their creation or organization and shall continue to remain
adequately capitalized so long as any obligations of Signature remain
outstanding to Lender.
For the purposes of this Agreement, the term "Related Entities" shall
mean any corporation, partnership, limited liability company or other
entity of which Signature owns a controlling interest or otherwise
controls, either directly or indirectly, the operations of such entity, and
any corporation, partnership, limited liability company or other entity
which owns a controlling interest in or otherwise controls, either directly
or indirectly, the operations of Signature. For the purposes of this
Agreement, the following entities shall be deemed to be "Related Entities"
of Signature: AKGI-Sint Maarten, N.V., a Netherlands Antilles corporation;
Grand Beach Resort, Limited Partnership, a Georgia limited partnership;
Port Royal Resort, L.P., a South Carolina limited partnership; Lake Tahoe
Resort Partners, L.L.C., a California limited liability company; and
Kabushiki Gaisha Kei, L.L.C., a California limited liability company. Each
of the representations, warranties, acknowledgments, covenants and
agreements set forth in this SECTION 2 shall be deemed to be a part of the
covenants and obligations of Signature as Seller under the Fall Creek
Commitment Agreement as if the same were set forth in their entirety in the
Fall Creek Loan Documents.
3. GENERAL.
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3.1 Signature shall execute and deliver such additional documents and
do such further acts as Lender may reasonably require to fully implement
the intent of this Agreement, including, without limitation, the execution
by Signature and delivery to Lender of fully-executed UCC Financing
Statement Change forms or new UCC Financing Statements as Lender may
require to continue perfection of all security interests in favor of
Lender, within thirty (30) days after Signature's receipt of such documents
from Lender.
3.2 Signature shall pay all costs and expenses including, but not
limited to, recording fees, title insurance premiums and reasonable
attorney's fees incurred by Lender in connection herewith, whether or not
all of the conditions described in this paragraph are satisfied.
3.3 This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their heirs, personal representatives,
successors and assigns.
3.4 This Agreement shall be governed and construed in accordance with
the laws of the State of Arizona.
[Signature page of Resort Capital Corporation/Signature Resorts, Inc.
Assumption Agreement]
IN WITNESS WHEREOF, this Agreement has been executed as of the day and year
first above written.
RESORT CAPITAL CORPORATION,
a Delaware corporation
By:______________________________
Its:___________________________
SIGNATURE RESORTS, INC.,
a Maryland corporation
By:______________________________
Its:___________________________
