Oneida Indian Nation (New York) Codes and Rules
Last amended: 2004
HOUSING CODE - CHAPTER 10 AND APPENDICES
See the Housing Code Table of Contents [all chapters]>>
CHAPTER 10 - NON-ALIENATION OF NATION LAND, USE RIGHTS AND HOMEOWNER
AGREEMENTS, SALES, RECORDATION, SPECIAL NATION REQUIREMENTS FOR
LOANS AND INSURANCE
1001. NON-ALIENATION OF NATION LAND
Neither Nation land, nor any improvement therein, may be alienated by any Nation member or other person. Nor may any improvement affixed to Nation land be removed from Nation land without Nation consent.
1002. USE RIGHTS AND HOMEOWNER AGREEMENT
A. Any person residing or intending to reside in a Home on Nation land pursuant to Chapter 7, 8 or 9 of this Code must enter into a Use Rights and Homeowner Agreement. A person’s interest in a Home is defined by the Use Rights and Homeowner Agreement between that person and the Nation. The Use Rights and Homeowner Agreement grants the person the right to construct, improve, rehabilitate and/or purchase an interest in the use of a Home on Nation land subject to the requirements of Nation laws. The Nation shall at all times retain ownership in the land and the improvements thereon. Those interests in the Home not held by the Homeowner under the Use Rights and Homeowner Agreement are retained by the Nation. A person may mortgage an interest in a Use Rights and Homeowner Agreement to obtain a loan for the Home.
B. The Use Rights and Homeowner Agreement shall be for a term of no more than fifty (50) years.
C. Any Use Rights and Homeowner Agreement entered into by the Homeowner individually shall terminate on the death of the Homeowner under all circumstances. A Use Rights and Homeowner Agreement is not devisable and anyone to whom the deceased intended to transfer an interest in a Home shall execute a new Use Rights and Homeowner Agreement in order to receive that interest in accordance with Chapter 9 of the Nation Housing Code.
D. A Use Rights and Homeowner Agreement shall not be sold or transferred, except that a Use Rights and Homeowner Agreement may be assigned for a certain period of time with Nation approval. An assignment of a Use Rights and Homeowner Agreement does not alter the duties of the Homeowner to the Nation under that Agreement. The right to enter into a Use Rights and Homeowner Agreement for a Home may be sold or transferred in accordance with Section 1004 of this Chapter 10.
E. Each of the following shall constitute an "Event of Default" under a Use Rights and Homeowner Agreement:
1. If Homeowner fails to pay the Annual Costs, including the Fixed Payment or Additional Costs, as such costs are defined in the Use Rights and Homeowner Agreement, and if such default shall continue for thirty (30) days after receipt of written notice from the Nation to Homeowner regarding such default;
2. If Homeowner defaults in the performance of any other of Homeowner’s obligations hereunder and if such default shall continue for thirty (30) days after written notice from the Nation to Homeowner regarding such other default or defaults, provided that if the default is of such a character as cannot reasonably be cured within said period, and if Homeowner has commenced diligently to correct the default or defaults after receipt of such notice and thereafter diligently pursues such correction, then said period shall be extended for an additional period up to sixty (60) days;
3. If Homeowner, without the prior written consent of the Nation, fails to use the Home as such Homeowner’s principal private residence for a continuous period of thirty (30) days; or
4. If Homeowner fails to pay or perform any obligation under any financing arrangement with the Nation or any financing arrangement guaranteed by the Nation.
F. If any Event of Default occurs, the Nation, at the Nation’s option, may terminate the Use Rights and Homeowner Agreement and recover possession of the Home or recover possession of the Home without terminating the Agreement. In the event the Nation elects to terminate the Use Rights and Homeowner Agreement, then the Agreement and all rights of Homeowner hereunder shall expire and terminate as if the date specified in such notice were the date fixed for the expiration of the Term of the Agreement. Following any Event of Default, the Nation and the agents and servants of the Nation lawfully may, in addition to and not in derogation of any other remedies, immediately or at any time thereafter and without demand or notice and with or without process of law enter into and upon the Home or any part thereof in the name of the whole and repossess the same and expel Homeowner and those claiming through or under Homeowner, including, without limitation, any authorized assignee (with or without the institution of legal proceedings to evict) and remove its and their effects without being deemed guilty of any manner of trespass or disturbance of the peace and without prejudice to any remedies which might otherwise be used for arrears of payments or prior breach of covenant, and the Nation, without notice to Homeowner, may store Homeowner's effects, and those of any person claiming through or under Homeowner at the expense and risk of Homeowner, and, if the Nation so elects, may sell such effects at public auction or private sale and apply the net proceeds to the payment of all sums due to the Nation from Homeowner, if any, and pay over the balance, if any, to Homeowner. If the Use Rights and Homeowner Agreement shall terminate as a result of or while there exists any Event of Default, any funds (including the member's Distributions from the Nation) in which Homeowner has an interest then held by or acquired the Nation may be applied by the Nation to any damages payable by Homeowner (whether provided for herein or by law or in equity) as a result of such termination or Event of Default, and the balance remaining, if any, shall be paid to Homeowner, if Homeowner would be entitled to receive such funds but for such termination or Event of Default. The Nation shall be entitled to reasonable attorneys' fees and all other costs and expenses actually incurred by the Nation in exercising its remedies hereunder.
G. The form of the Use Rights and Homeowner Agreement is attached as Appendix I to this Code.
H. A certificate acknowledging the grant by the Nation under a Use Rights and Homeowner Agreement of the use and occupancy rights to a Home shall be issued to the Homeowner executing the Use Rights and Homeowner Agreement. Such Homeowner certificate is for informational purposes only, and shall be valid only so long as the Use Rights and Homeowner Agreement to which it relates is valid. A new certificate shall be issued in the event of any assignment, sale or other transfer of the rights to use and occupy the Home to a different Homeowner.
1003. SPECIAL LOAN REQUIREMENTS
A. Notice and Approval of Loans Relating to a Home.
1. Any Nation member or other individual seeking to obtain a loan must notify the Nation Housing Entity at least thirty (30) days prior to requesting a loan.
2. No loan shall be obtained for a Home without written approval by the Nation Housing Entity. Any loan effectuated without approval shall be voidable at the discretion of the Nation. The Nation may void any pledge of any interest in the Use Rights and Homeowner Agreement for lack of Nation approval with written notice to the Lender and Nation member.
3. No Home loan shall be valid or effective unless there is an executed Use Rights and Homeowner Agreement as defined in Section 1002 of this Chapter between the Nation and Nation member seeking the loan, which Agreement applies to the Home covered by the loan for the period of the loan.
B. Land is Not Available Collateral.
No loan shall be collateralized or secured by Nation land or any improvements thereon. Any instrument attempting to assert a lien against Nation land or any improvement thereon shall be null and void.
1004. HOME SALE
A. Authorized Buyers.
A Homeowner’s interest in a Home to which a Contribution has been invested or for which the Nation has guaranteed a loan, may be sold or transferred, by operation of law or otherwise, by a Homeowner only to the Nation, a member of the Nation, or a qualified beneficiary under Chapter 9. Any sale or transfer must be approved by the Nation Housing Entity.
B. A New Use Rights and Homeowner Agreement Is Required Upon Sale or Transfer.
Any person intending to reside in a Home on Nation land must execute a Use Rights and Homeowner Agreement prior to occupancy unless that person has been assigned an Agreement with the approval of the Nation.
C. Nation Home Sale Assistance.
The Nation will assist any Nation member in the sale of such member’s interest in a Home. Upon request of the Nation member Homeowner, the Nation will arrange at Nation expense for an appraisal of the fair market value of the Home. Regardless of the appraised amount, the actual selling price shall be negotiated between buyer and seller.
D. Nation Option to Purchase.
1. The Nation reserves the option to submit a purchase offer to the seller of such seller’s interest in a Home on Nation land. This purchase offer may be extended, at the discretion of the Nation, to any Nation member who has made "good faith" efforts to sell such member’s Home but has been unsuccessful in his efforts.
2. "Good faith" efforts shall include those which attempt to inform the Oneida community of the availability of the Home, such as by public posting of "For Sale" notices and through the Nation member newsletter; offering the Home for sale at a reasonable selling price (based upon appraised value); and making such efforts for a period of at least twelve (12) months.
1005. RECORDS
A. The Clerk of the Nation shall record:
1. Each Use Rights and Homeowner Agreement;
2. Any assignment related to any Use Rights and Homeowner Agreement;
3. Any loan, Contribution, Loan Guaranty, and/or promissory note; and
4. Any sale and transfer by the holder of a Use Rights and Homeowner Agreement of the rights to use and occupy a Home.
5. Any amendment, modification or termination of any of the aforementioned documents.
B. The Nation Housing Corporation shall maintain its own record of the aforementioned documents as well as copies of each application for, each loan with, and any insurance certificate or indemnity policy related to any Use Rights and Homeowner Agreement.
C. The Nation Housing Corporation also shall maintain a record of each Contribution made by the Nation on behalf of a Nation member, the vesting of each Contribution, and the enforcement of any promissory note, and the performance of any loan, including any Loan Guaranty paid by the Nation on a loan.
1006. INSURANCE
A. A person with a Use Rights and Homeowner Agreement shall obtain, maintain, and faithfully comply with any property, liability and other insurance policy as may be required by the Nation Housing Corporation and/or a Lender. All insurance policies shall:
1. Name the Nation, the Homeowner, and any Mortgagee as insured, as their respective interests may appear, and shall include an effective waiver by the issuer of all rights of subrogation against any insured or such insured's interest in the Home or any income derived therefrom;
2. Provide that all claims for losses shall be adjusted by Homeowner subject to the approval of the Nation;
3. Provide that any losses shall be payable notwithstanding any act or failure to act or negligence of the Nation or Homeowner or any other person;
4. Provide that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by the Nation, the Homeowner and any Mortgagee of written notice thereof;
5 . Require the insurer to promptly notify the Nation of any non-payment of any premium when due; and
6. Provide that the Nation shall have sole authority to invoke the defense of sovereign immunity in connection with any proceeding asserting liability against the Nation.
B. The Mortgagee, if any, shall require that an insurance escrow or impoundment account be established with such Mortgagee, and the Homeowner shall escrow such funds with Mortgagee for payment by the Mortgagee of the insurance premium, as and when payment therefore is due. The Homeowner shall also escrow in this same account such funds sufficient to cover payment by the Borrower/Mortgagor of any Nation assessment, such as the service assessment applicable to and due from residents of the Village of White Pines.
C. Homeowner
shall deliver to the Nation evidence of the payment of the annual insurance
premium for insurance whether paid directly by the Homeowner or, in
the event of a mortgage, by the Mortgagee in compliance with the foregoing
section.
Appendix I - Sample Use Rights and Homeowner Agreement
USE RIGHTS AND HOMEOWNER AGREEMENT
By and between
ONEIDA INDIAN NATION
And
__________________
Dated as of __________________
Table of Contents
RECITALS
1. DEFINITIONS
2. GRANT
3. TERM OF AGREEMENT
4. COSTS
a. Fixed Payment
b. Additional Costs
c. Occupancy Expenses
d. No Services
5. INSURANCE AND INDEMNITY
a. Risks to Be Insured
b. Miscellaneous Insurance Provisions
c. Escrow for Insurance
d. Insurance Certificate
6. USE
7. ASSIGNMENT
a. Assignment
b. Consent to Assignment
c. Default
8. COMPLIANCE
WITH NATION LAWS
9. LIENS
a. Claims
b. Contest of Claims
10. CASUALTY AND TAKING
a. Casualty
b. Takings
c. Proceeds
11. HOME
a. Repairs and Alterations
b. Ownership and Title to Home
12. QUIET ENJOYMENT
13. DEFAULTS
a. Events of Default
b. Termination; Repossession
14. NATION’S
RIGHT TO PERFORM HOMEOWNER’S COVENANTS
15. INDEMNITY
16. MISCELLANEOUS
a. Construction
b. Governing Law
c. Dispute Resolution
d. No Waiver
e. Headings
f. Successors
g. Estoppel Certificate
h. Notice
i. Entire Agreement; No Oral Modifications
j. No Merger of Title
k. No Alienation of Home
l. No Third Party Beneficiary
EXHIBIT A LEGAL DESCRIPTIONS OF LAND
USE RIGHTS AND HOMEOWNER AGREEMENT
THIS USE RIGHTS AND HOMEOWNER AGREEMENT (this "Agreement")
is made as of the ____ day of _______, 2000___, by and between the ONEIDA
INDIAN NATION, a sovereign Indian nation (the "Nation") and
______________________ ("Homeowner").
RECITALS
WHEREAS, the Nation desires to grant to Homeowner and Homeowner desires to obtain from the Nation the right to use and occupy a Home (hereinafter defined) located on a certain parcel of the land of the Oneida Indian Nation.
NOW THEREFORE, the Nation and Homeowner do hereby agree as follows:
1. DEFINITIONS. As used in this Agreement:
a. "Additional Costs" shall mean all sums, costs, expenses and other amounts, excluding the Fixed Payment, which Homeowner in any of the provisions of this Agreement agrees to pay to the Nation, including reimbursement of the Nation for any Occupancy Expenses advanced by the Nation on behalf of the Homeowner.
b. "Agreement Year" shall mean each successive twelve (12) calendar month period commencing on the first day of the first month of this Agreement.
c. "Annual Certification" shall mean an annual certification provided by the Homeowner to the Nation each year on or before the anniversary date of the commencement of this Agreement which reaffirms the Homeowner’s compliance with the terms of this Agreement.
d. "Annual Costs" shall mean the Fixed Payment and the Additional Costs, collectively.
e. "Assignment" shall mean: (i) any disposition, lease, or transfer by Homeowner of any or all of its rights and obligations under this Agreement, whether voluntary, by operation of law, or otherwise; (ii) an imposition (whether or not consensual) of a lien, mortgage or encumbrance upon Homeowner’s interest in this Agreement; and (iii) an arrangement which allows the use and occupancy of the Home by any person or entity other than Homeowner.
f. "Assignment Notice" shall mean a notice from Homeowner to the Nation requesting the Nation’s consent to an Assignment.
g. "Award" shall mean the total proceeds of any award paid or payable in any condemnation or eminent domain proceeding or the consideration or settlement paid or payable pursuant to any agreement with the Nation.
h. "Base Year" shall mean the first Agreement Year.
i. "Fixed Payment" shall mean the annual fixed payment paid by Homeowner to the Nation in consideration of the rights granted in this Agreement.
j. "Lands" shall mean the lands of the Nation.
k. "Mortgagee" shall mean any lender approved by the Nation with a valid lien on the Homeowner’s interest herein.
l. "Nation Laws" shall mean all laws, ordinances, codes, orders, rules, regulations and requirements of the Oneida Indian Nation.
m. "Net Award" shall mean the total Award less all costs, expenses and reasonable attorneys’ fees of the Nation’s counsel incurred in the collection thereof.
n. "Occupancy Expenses" shall mean the aggregate of all costs, expenses and disbursements of every kind and nature relating to or incurred or paid during the Term in connection with the use, occupancy, improvement, construction and maintenance of the Home and the land upon which the Home is situated.
o. "Home" shall mean all improvements, buildings and structures from time to time situated on that portion of the Nation’s Lands consisting of ________ acres, more or less, and situated near ______________, said land being more particularly described in Exhibit A attached hereto and made a part hereof.
p. "Term" shall mean the term of this Agreement commencing as of the first day of the Base Year and ending on the day before the date which is fifty (50) years after the date of commencement, unless sooner terminated in accordance with the terms hereof or by agreement of the Nation and Homeowner.
2. GRANT. In consideration of the Annual Costs and maintenance, insurance and other covenants set forth herein, on the part of Homeowner to be paid, performed and observed, the Nation does hereby grant to Homeowner, and Homeowner does hereby accept from the Nation, for the Term, upon and subject to the terms and provisions of this Agreement, the right to use the Home as the Homeowner’s principal residence.
3. TERM OF AGREEMENT. The right to use the Home is hereby granted to Homeowner for the Term.
4. COSTS.
a. Fixed Payment. Homeowner covenants and agrees to pay to the Nation the Fixed Payment in advance on or before the first day of the Base Year and on or before the first day of each Agreement Year thereafter throughout the Term of this Agreement without offset or deduction. Notwithstanding anything contained herein to the contrary, Homeowner shall not be permitted, and the Nation shall not accept, any Fixed Payment paid more than one (1) year in advance. The Fixed Payment for the Base Year and for each Agreement Year thereafter shall be One and No/100 Dollars ($1.00).
b. Additional Costs. Homeowner covenants and agrees to pay throughout the Term of this Agreement, at the address set forth herein for the Nation, or at such other place as the Nation may from time to time designate in writing, the Additional Costs. In connection with the payment of the Annual Costs, the Homeowner shall provide the Annual Certification to the Nation.
c. Occupancy Expenses . Homeowner shall pay directly all Occupancy Expenses related to the Home, including any user fees, and shall reimburse the Nation for any Occupancy Expenses advanced by the Nation on Homeowner's behalf within fifteen (15) days of demand therefor.
d. No Services . The Nation shall not be required to provide any services or to do any act or thing with respect to the Home, except as specifically provided herein, and the Annual Payment shall be paid to the Nation without any claim on the part of Homeowner for diminution, set-off or abatement, and nothing shall suspend, abate or reduce any payment or other sums to be paid hereunder, except as otherwise specifically provided in this Agreement.
5. INSURANCE AND INDEMNITY.
a. Risks to Be Insured. At all times during the Term, Homeowner shall, at Homeowner's cost and expense effect and maintain the following:
(i) All risk property insurance on the Home, in an amount representing not less than one hundred percent (100%) of the full insurable value (the term "full insurable value" shall mean the actual replacement cost [excluding foundation and excavation cost and cost of underground flues, pipes, and drains] of the Home.
(ii) General liability insurance, including property damage, on the Home and covering any liability that the Nation may have for injury to persons or property, on an "occurrence" basis with a limit of not less than _____________ Dollars ($_____________) per occurrence.
(iii) Such other insurance as the Nation or any Lender/Mortgagee may reasonably require.
b. Miscellaneous Insurance Provisions.
(i) The form and content of each policy of insurance shall be generally in accordance with what is customary for similar properties (including, without limitation, non-Indian properties) located in the general vicinity of the Nation's Lands and the Home.
(ii) All insurance policies shall (A) name the Nation, the Homeowner, and any Mortgagee as insured, as their respective interests may appear, and shall include an effective waiver by the issuer of all rights of subrogation against any insured or such insured's interest in the Home or any income derived therefrom; (B) provide that all claims for losses shall be adjusted by Homeowner subject to the approval of the Nation; (C) provide that any losses shall be payable notwithstanding any act or failure to act or negligence of the Nation or Homeowner or any other person; (D) provide that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) days after receipt by the Nation, the Homeowner and any Mortgagee of written notice thereof; (E) require the insurer to promptly notify the Nation of any non-payment of any premium when due; and (F) provide that the Nation shall have sole authority to invoke the defense of sovereign immunity in connection with any proceeding asserting liability against the Nation.
(iii) Homeowner shall observe and comply with the requirements of all policies of insurance that Homeowner is required hereby to maintain with respect to the Home.
c. Escrow for Insurance. The Mortgagee, if any, shall require that an insurance escrow or impoundment account be established with such Mortgagee, and the Homeowner shall escrow such funds with Mortgagee for payment by the Mortgagee of the insurance premium, as and when payment therefore is due. The Homeowner shall also escrow in this same account such finds sufficient to cover payment by the Borrower/Mortgagor of any Nation assessment, such as the service assessment applicable to and due from residents of the Village of White Pines.
d. Insurance Certificate. If there is no Mortgagee, Homeowner shall deliver to the Nation evidence of the payment of the annual insurance premium for insurance obtained in compliance with the foregoing section.
6. USE. Homeowner shall have the right to use the Home or any part thereof as Homeowner's principal private residence and to build and rebuild thereupon such building or buildings on the Home as Homeowner may elect, and to make such alterations, improvements and betterments to the Home as Homeowner may desire, all in accordance with the Nation Laws.
7. ASSIGNMENT.
a. Assignment. Homeowner shall not be entitled to an Assignment without the prior written consent of the Nation. In order to obtain the foregoing consent, Homeowner shall submit to the Nation the Assignment Notice containing the following information: the reason for the requested Assignment, the effective date of the proposed Assignment, and the identity of the assignee, including the assignee's exact legal name. In no event shall the proposed effective date of the Assignment be less than thirty (30) days after the date of the Assignment Notice to the Nation. The Nation shall have thirty (30) days from the receipt of the Assignment Notice to review Homeowner's request and to notify Homeowner whether it will consent to the Assignment.
b. Consent to Assignment. If the Nation consents to the Assignment, the assignee, in a duly executed and acknowledged instrument of assumption, in form satisfactory to the Nation, shall assume the performance of all the terms and conditions on the part of Homeowner to be performed hereunder and, in connection therewith, shall agree to comply with Nation Laws. In the event of any Assignment, Homeowner shall remain fully liable to perform the obligations of Homeowner under this Agreement, such obligations to be joint and several with the obligations of the assignee under this Agreement. The consent by the Nation to any Assignment shall not be construed as a waiver or release of Homeowner from the terms of any covenant or obligation under this Agreement, nor shall the collection or acceptance of any payment from any assignee constitute a waiver or release of Homeowner of any covenant or obligation contained in this Agreement, nor shall any Assignment be construed to relieve Homeowner or the assignee from obtaining the prior written consent of the Nation to any further Assignment.
c. Default. Notwithstanding any provision in this Agreement to the contrary, Homeowner shall not be permitted an Assignment at any time if Homeowner is in default of any provision of this Agreement.
8. COMPLIANCE WITH NATION LAWS. Homeowner shall at all times during the Term, at Homeowner's cost and expense, perform and comply with Nation Laws. The foregoing shall apply whether or not such Nation Laws shall necessitate structural changes, improvements, interference with use and enjoyment of the Home, replacements or repairs, extraordinary as well as ordinary, and Homeowner shall so perform and comply, whether or not such Nation Laws shall now exist or shall hereafter be established, enacted or promulgated, and whether or not such Nation Laws can be said to be within the present contemplation of the parties hereto.
9. LIENS.
a. Claims. Notice is hereby given that the Nation shall not be liable for any work performed or to be performed on the Home, or for any materials furnished or to be furnished at the Home for Homeowner, and that no lien for such work or materials shall attach to the reversionary or any other interest of the Nation. If, in connection with any work being performed by Homeowner, or in connection with any materials being furnished to Homeowner, any lien or charge shall be attempted to be filed or made against the Home or any part thereof, or if any such lien or charge shall be attempted to be made against the Nation as owner, then Homeowner, at Homeowner's cost and expense, within sixty (60) days after such lien or charge shall have been attempted to be filed or made, shall cause the same to be canceled and discharged. Homeowner shall also defend, at Homeowner's cost and expense, any action, suit or proceeding which may be brought for the enforcement of such alleged lien or charge, and shall pay any damages, costs and expenses (including reasonable attorneys' fees) suffered or incurred therein by the Nation, and shall satisfy and discharge any judgment entered therein.
b. Contest of Claims. Notwithstanding the foregoing, after prior written notice to the Nation, Homeowner, at its expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the legality or validity or amount of application, in whole or in part, of any lien or other charge of the nature referred to above, provided that Homeowner shall have furnished such security as the Nation may require.
10. CASUALTY AND TAKING.
a. Casualty. If the Home is damaged or destroyed by fire or other casualty, this Agreement shall in no way be affected and shall continue in full force and effect, and Homeowner warrants and represents that it shall restore, or cause the restoration of, the Home, provided, however, that if during the last five (5) years of the Term there is a total destruction of the Home or substantial damage to the Home such that Homeowner determines in good faith that restoration is not economically feasible, Homeowner may terminate this Agreement, provided Homeowner delivers written notice to the Nation within ninety (90) days after the date of such destruction or damage. All moneys paid under policies of insurance shall be held by the Nation, and such insurance proceeds, together with any and all interest thereon, shall be disbursed to Homeowner to enable Homeowner to restore or rebuild the Home, or any part thereof, or of erecting a new home. Notwithstanding the foregoing, in the event that there is a Mortgage, all proceeds of insurance shall be held by the Mortgagee and disbursed to Homeowner and the contractor(s), incrementally as work is done, to enable the Homeowner to rebuild or restore the Home as set forth in preceding sentence. In the event this Agreement is terminated as permitted above, Homeowner shall assign and transfer to the Nation all proceeds of any insurance policies related to the Home.
b. Takings. If twenty-five percent (25%) or more of the total gross floor area of the Home shall be taken for any public or quasi-public purpose by the appropriate governmental authorities, by the exercise of the right of condemnation or eminent domain, or by agreement with the Nation, then in such event Homeowner shall have the right to cancel and terminate this Agreement as of the date of such taking, upon giving written notice to the Nation of such election within sixty (60) days after receipt by Homeowner of written notice that such portion of the Home has been taken. In the event of such cancellation, Homeowner shall thereupon be released from any further liability under this Agreement. If the Agreement is not terminated, the entire Award shall be delivered to the Nation or, in the event that there is a loan, to the Lender and disbursed to Homeowner for repairing and rebuilding of the Home.
c. Proceeds. Any portion of any insurance proceeds or any Award not expended by Homeowner on repairing and rebuilding the Home, because of a termination of this Agreement or otherwise, shall be provided to the Nation.
11. HOME.
a. Repairs and Alternations. Homeowner shall at all times during the Term, at Homeowner's cost and expense, keep the Home and all facilities and equipment therein and adjoining the Home, and land and landscaping surrounding the Home, in reasonable operating condition and repair, and in such condition as may be required by Nation Laws and by the terms of the insurance policies furnished pursuant to this Agreement, whether or not such repair shall be interior or exterior, extraordinary as well as ordinary, and whether or not such repair shall be of a structural nature or can be said to be within the present contemplation of the parties hereto. Homeowner shall at all times during the Term, at Homeowner's cost and expense, keep the sidewalks and curbs, if any, adjoining the Home, free from snow, ice and all other obstructions.
b. Ownership and Title to Home. Homeowner covenants and agrees that its interest in the Home and any replacement or addition thereto is subject to the terms and conditions of this Agreement. The Homeowner's interest in the Home, the fixtures, or other improvements in, on, to or upon the Home consists of the right to use the Home as provided by this Agreement and to enjoy the Net Value thereof as defined in Chapter 9 of the Housing Code. Homeowner covenants and agrees that, upon the termination of this Agreement, its interest in the Home, the fixtures and improvements shall, in accordance with Nation Laws, vest in the Nation, unless and until a subsequent Use Rights and Homeowner Agreement is executed with respect to the Home.
12. QUIET ENJOYMENT. The Nation covenants and agrees with Homeowner that as long as Homeowner pays the Annual Costs, and performs and fulfills all covenants, agreements and conditions set forth herein, Homeowner shall, at all times during the Term, peaceably and quietly have, hold and enjoy the Home and all rights, appurtenances and privileges belonging or in any way appertaining thereto without hindrance or disturbance.
13. DEFAULTS.
a. Events of Default. Each of the following shall constitute an "Event of Default": (a) if Homeowner fails to pay the Annual Costs, including the Fixed Payment or Additional Costs, and if such default shall continue for thirty (30) days after receipt of written notice from the Nation to Homeowner regarding such default; (b) if Homeowner defaults in the performance of any other of Homeowner's obligations hereunder and if such default shall continue for thirty (30) days after written notice from the Nation to Homeowner regarding such other default or defaults, provided that if the default is of such a character as cannot reasonably be cured within said period, and if Homeowner has commenced diligently to correct the default or defaults after receipt of such notice and thereafter diligently pursues such correction, then said period shall be extended for an additional period up to sixty (60) days; (c) if Homeowner, without the prior written consent of the Nation, fails to use the Home as such Homeowner's principal private residence for a continuous period of thirty (30) days; or (d) if Homeowner fails to pay or perform any obligation under any financing arrangement with the Nation or any financing arrangement guaranteed by the Nation.
b. Termination; Repossession. If any Event of Default occurs, the Nation, at the Nation's option, may either terminate this Agreement and recover possession of the Home or recover possession of the Home without terminating this Agreement. In the event the Nation elects to terminate this Agreement, then this Agreement and all rights of Homeowner hereunder shall expire and terminate as if the date specified in such notice were the date herein fixed for the expiration of the Term. In the "Event of Default" the Nation shall have available to it any and all remedies under law or equity. The Nation shall be entitled to reasonable attorneys' fees and all other costs and expenses actually incurred by the Nation in exercising its remedies hereunder.
14. NATION'S RIGHT TO PERFORM HOMEOWNER'S COVENANTS.
Homeowner agrees that if it shall at any time fail, within thirty (30) days of receipt of notice from the Nation (except no prior notice shall be required in case of emergency), to perform any act on its part to be performed as provided in this Agreement, then, without further notice or demand upon Homeowner and without waiving or releasing Homeowner from any obligation of Homeowner contained in this Agreement or waiving any other right or remedy of the Nation, the Nation may, but shall not be obligated to perform any other act on Homeowner's part to be performed as provided in this Agreement. All sums paid by the Nation and all incidental costs and expenses paid or incurred by the Nation in connection with the Nation's performance of any act described in the previous sentence, together with all reasonable attorneys' fees and together with interest thereon from the date of the making of such expenditures by the Nation, at the default rate described herein, shall be payable to the Nation, on demand and Homeowner covenants to pay any such sum or sums with interest as aforesaid. All sums which may become payable to the Nation by Homeowner as provided in this section, and all sums which Homeowner assumes or agrees to pay pursuant to this Agreement, shall be deemed Additional Costs hereunder and be payable as aforesaid, and the Nation shall have (in addition to any other right or remedy of the Nation) the same rights and remedies in the event of the nonpayment of any such sums as in the case of Homeowner's default in the payment of Annual Costs.
15. INDEMNITY. Homeowner shall indemnify, defend and hold the Nation harmless from and against any and all liabilities, losses, damages, expenses, causes of action, suits, interest, fines, penalties, claims and judgments (to the extent that the same are not barred by the doctrine of sovereign immunity and to the extent that the same are not paid out of the proceeds of any policies of liability insurance furnished by Homeowner to the Nation) arising from any occurrence during the Term involving person or property of any and every nature, and from any matter of thing, growing out of the occupation, possession, use, improvement, construction, alteration, repair, maintenance or control of the Home, or arising out of Homeowner's failure to perform each and every term, covenant, condition and agreement to be performed by Homeowner hereunder. Homeowner, at Homeowner's sole cost and expense, shall defend, by counsel acceptable to the Nation, any and all suits that may be brought, and claims which may be made, against the Nation, or in which the Nation may be impleaded with others, and shall satisfy, pay and discharge any and all judgments that may be imposed against the Nation or that may be filed against the Home, the Buildings or the appurtenances thereto, or any interest therein. In the event of the failure of Homeowner to pay any sum or sums for which Homeowner shall become liable as aforesaid, then the Nation may pay such sum or sums, with all interest and charges which may have accrued thereon, and the amount so paid by the Nation shall be payable by Homeowner to the Nation upon demand as Additional Costs. The foregoing shall not be, or be construed in any way as, a waiver or relinquishment of the Nation's sovereignty or sovereign immunity or any portion thereof.
16. MISCELLANEOUS.
a. Construction. The Nation and Homeowner agree that all the provisions hereof are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate paragraph hereof.
b. Governing Law. This Agreement shall be construed according to and shall be governed by Nation Laws.
c. Dispute Resolution. In the event of a dispute between the parties arising from this Agreement, the parties hereto establish a method of non-judicial dispute resolution. All disputes concerning compliance with and interpretation of the provisions of this Agreement shall be resolved by binding arbitration pursuant to the rules of arbitration established under Nation Laws. Any decision of the arbitrator shall be enforceable in the Oneida Nation Courts.
d. No Waiver. Failure of either party to complain of any act or omission on the part of the other party, no matter how long the same may continue, shall not be deemed to be a waiver by said party of any of its rights hereunder. No waiver by either party at any time, express or implied, of any breach of any provision of this Agreement shall be deemed a waiver of a breach of any other provision of this Agreement or a consent to any subsequent breach of the same or any other provision. If any action by either party shall require the consent or approval of the other party, the other party's consent to or approval of such action on any one occasion shall not be deemed a consent to or approval of said action on any subsequent occasion or a consent to or approval of any other action on the cause of any subsequent occasion. Any and all rights and remedies which either party may have under this Agreement or by operation of Nation Laws upon any breach, shall be distinct, separate, and cumulative and shall not be deemed inconsistent with each other; no one of them, whether exercised by said party or not, shall be deemed to be in exclusion of any other, and any two or more or all of such rights and remedies may be exercised at the same time.
e. Headings. The headings used for the various articles and sections of this Agreement are used only as a matter of convenience for reference, and are not to be construed as part of this Agreement or to be used in determining the intent of the parties of this Agreement.
f. Successors. Unless repugnant to the context, the words "Nation" and "Homeowner" shall be construed to mean the original parties, their respective permitted successors and assignees, and those claiming through or under them, respectively.
g. Estoppel Certificate. Each party agrees from time to time, upon no less than fifteen (15) days' prior written request of the other, to execute, acknowledge and deliver to the other a statement in writing certifying that this Agreement is unmodified and in full force and effect (or, if there have been any modifications, that the same is in full force and effect as modified and stating the modifications) and the dates to which the payment has been paid and whether there exists any uncured default by the other party and, if so, the nature of such default.
h. Notice. Every notice and demand required or permitted to be given under this Agreement shall be in writing and deemed to have been duly given (a) when mailed postage prepaid by certified mail, with or without return receipt requested, or (b) when delivered, if delivered by hand or by commercially recognized, over-night courier, addressed as follows:
| If to the Nation: |
Oneida
Housing Corporation |
| If to Homeowner: | |
or, in the case of either party, to such other address as that party shall from time to time have designated by written notice given to the other party as herein provided.
i. Entire Agreement; No Oral Modifications. This instrument contains the entire agreement made between the parties hereto and may not be modified in any other manner than by an instrument in writing executed by the parties or their permitted successors in interest.
j. No Merger of Title. There shall be no merger of the estate created by this Agreement with the ownership of the Home or the Nation Lands by reason of the fact that the same person or entity may own or hold (a) the estate created by this Agreement or any interest in such estate, and (b) any interest in the ownership of the Home or the Nation Lands; and no such merger shall occur unless and until all persons having any interest in (x) the estate created by this Agreement, and (y) the ownership of the Home and the Nation lands, shall join in a written instrument effecting such merger.
k. No Alienation of Home or Lands. The parties hereto acknowledge and agree that this Agreement does not directly or indirectly grant, or convey or otherwise transfer ownership of the Lands and the improvements thereon from the Nation to the Homeowner or anyone else. This Agreement grants the right to use and occupy the Home without, in any way, alienating the Lands of the Nation or improvements thereon, or granting to Homeowner the right to transfer, convey or otherwise alienate such Lands or improvements.
l. No Third Party Beneficiary. The parties hereto acknowledge and agree that this Agreement, and the transactions contemplated hereby, are solely for the benefit of the parties hereto and not for the benefit of any third party.
EXECUTED as a sealed instrument on the day and year first hereinabove written.
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WITNESS: |
ONEIDA
INDIAN NATION, |
| Ray Halbritter Nation Representative(s) |
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WITNESS: |
Homeowner: |
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ONEIDA INDIAN NATION ) ss:
I, the undersigned, a _______________ in and for the jurisdiction aforesaid, do certify that Ray Halbritter, the Nation Representative of the Oneida Indian Nation whose name is signed to the Agreement has acknowledged the same before me in the jurisdiction aforesaid.
Given under my hand and seal this _____ day of ____________,2000.
My commission expires:
(Notarial Seal)
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ONEIDA INDIAN NATION ) ss:
I, the undersigned, a ____________ in and for the jurisdiction aforesaid, do certify that _____________, whose name is signed to the Agreement has acknowledged the same before me in the jurisdiction aforesaid.
Given under my hand and seal this ________ day of ___________, 2000.
My commission expires:
(Notarial Seal)
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EXHIBIT A - LEGAL DESCRIPTIONS OF LAND
[Digitizer's note: No accompanying text.]
Appendix II - Sample Secured Promissory Note
SECURED PROMISSORY NOTE
| Principal: |
Date: |
FOR VALUE RECEIVED, the undersigned, , an individual who is an enrolled Member of the Oneida Indian Nation (hereinafter referred to as "Borrower"), hereby promises to pay to the order of the Oneida Indian Nation, a sovereign Indian nation (hereinafter referred to as "Holder"), the principal sum of DOLLARS ($ ).
This Note is executed in consideration of the Contribution provided by Holder to Borrower of Dollars ($ ) pursuant to the Holder’s Home Contribution Program established by Ordinance 00- and administered by the Nation Housing Corporation in accordance with Chapter 7 of the Oneida Indian Nation Housing Code.
This Note is secured by a pledge of (i) Borrower’s right to use and occupy the improvements located on the real property described on Exhibit A attached hereto pursuant to a Use Rights and Homeowner Agreement (the "Home"), (ii) any Distribution Proceeds from the Nation to the Borrower as a member in good standing of the Oneida Indian Nation, and (iii) [other] (collectively, the "Collateral").
This Note shall be a non-interest bearing note.
The principal balance of this Note shall be reduced ("Vested") in equal annual amounts sufficient to fully amortize the principal balance hereunder over a ten (10) year period, providing that each year that Borrower maintains a Use Rights and Homeowner Agreement and uses the Home as the Borrower’s principal residence. Vesting occurs on the anniversary date of the Use Rights and Home" Agreement in accordance with the foregoing sentence. Once the Borrower has maintained the Use Rights and Homeowner Agreement for a consecutive ten (10) year period, the Contribution shall be fully Vested and this Note shall be satisfied and of no further force or effect.
Payment under this Note shall be deferred for a period of ten (10) years from the date hereof; provided that, at the option of Holder, the non-Vested principal of this Note shall become immediately due and payable in the event that: (i) Borrower, without approval of the Holder, ceases to reside in the Home for which the Holder provided to the Borrower the Contribution to which this Note relates for a period in excess of thirty consecutive (30) days; (ii) Borrower transfers or attempts to transfer the Use Rights and Homeowner Agreement or attempts to transfer the Home, without approval of the Holder; (iii) Borrower is the sole signatory of the Use Rights and Homeowner Agreement and Borrower dies; or (iv) Borrower violates any provision of the Use Rights and Homeowner Agreement, Ordinance 00- , or any provision of the Oneida Nation Housing Code, as may be amended from time-to-time.
Borrower and all others who may become liable for all or any part of this Note, agree hereby to be jointly and severally bound, and jointly and severally (i) waive and renounce any and all homestead exemption rights and the benefits of all valuation and appraisement privileges as against this debt or any renewal or extension hereof; (ii) waive presentment, demand, protest, notice of nonpayment, notice of dishonor, and any and all lack of diligence or delays in the collection or enforcement hereof; (iii) expressly consent to the release or substitution of any of the collateral securing this Note; and (iv) expressly consent to any extension of the time for payment of this Note and any other indulgence or forbearance by Holder. Any such extension, release, substitution, indulgence, or forbearance may be made without notice to any party and without in any way affecting the personal liability of any party liable hereon.
All payments hereunder shall be payable to the order of Holder at the Nation Housing Corporation, Oneida Nation Homelands, 267 Union Street, RD 2, Oneida, New York, 13421 or at such place and such person as shall be designated in writing from time to time by Holder. The principal on this Note shall be payable in immediately available funds in lawful money of, or used by, the Oneida Indian Nation that is legal tender for public and private debts at the time of payment.
This Note shall be binding upon Borrower and its successors and assigns and shall inure to the benefit of Holder and its successors and assigns. This Note shall be governed by and construed in accordance with the laws of the Oneida Indian Nation.
IN WITNESS WHEREOF, the undersigned, with full power and authority to do so, intending that this Note shall constitute an instrument under seal, has caused these presents to be executed, delivered, and sealed on the day and year first above written.
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WITNESS: |
BORROWER: |
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(Seal) |
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| (Seal) Name: Address: |
ONEIDA INDIAN NATION )ss:
On the day of , in the year , before me, the undersigned officer, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(-ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the same.
| [Signature]
[Office of person taking the acknowledgment] |
Appendix III - Sample Pledge Agreement
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Agreement") is entered into among , with an address of (referred to below as "Grantor") and the ONEIDA INDIAN NATION, a sovereign Indian nation, with an address of (referred to below as the "Nation").
1. Pledge. For valuable consideration, Grantor grants to the Nation a security interest in the Collateral to secure the Indebtedness and agrees that the Nation shall have the rights stated in this Agreement with respect to the Collateral, in addition to all other rights which the Nation may have under Nation law. This is a continuing Security Agreement and will continue in effect even though all or any part of the Indebtedness is paid in full and even though for a period of time Grantor may not be indebted to the Nation.
2. Definitions. The following words shall have the following meanings when used in this Agreement.
a. The word "Collateral" means the property described on Exhibit A attached hereto and incorporated herein, together with all Income and Proceeds, if any as described below. In addition, the word "Collateral" includes all property of Grantor, in the possession of the Nation (or in the possession of a third party subject to the control of the Nation), whether now or hereafter existing and whether tangible or intangible in character.
b. The words "Event of Default" mean and include without limitation any of the Events of Default set forth below in the section titled "Events of Default."
c. The word "Grantor" means the party specified above. Any Grantor who signs this Agreement, but does not sign the Note, is signing this Agreement only to grant a security interest in Grantor’s interest in the Collateral to the Nation and is not personally liable under the Note except as otherwise provided by contract or Nation law (e.g. personal liability under a guaranty or as a surety).
d. The word "Guarantor" means and includes without limitation each and all of the guarantors, sureties, and accommodation parties in connection with the Indebtedness and their personal representatives, successors and assigns.
e. The words "Income and Proceeds" mean all present and future income, proceeds, earnings, increases, and substitutions from or for the Collateral of every kind and nature, including without limitation all payments, interest, profits, benefits, rights, options, warrants, dividends, stock dividends, stock splits, stock rights, regulatory dividends, distributions, subscriptions, monies, claims for money due and to become due, proceeds of any insurance on the Collateral, shares of stock of different par value or no par value issued in substitution or exchange for shares included in the Collateral, and all other property Grantor is entitled to receive on account of such Collateral, including accounts, contract rights, documents, instruments, chattel paper, and general intangibles.
f. The word "Indebtedness" means the indebtedness evidenced by the Note, including all principal, interest and fees, costs, and expenses, if any, together with all modifications of and renewals, replacements and substitutions for any of the foregoing. "Indebtedness" also includes all other present and future liabilities and obligations of Grantor to the Nation, whether direct or indirect, matured or unmatured, and whether absolute or contingent, joint, several or joint and several, and no matter how the same may be evidenced or shall arise.
g. The word "Note" means the note dated of even date herewith in the principal amount of from Grantor to the Nation, together with all modifications of and renewals, replacements, and substitutions for the notes.
h. The word "Obligor" means and includes without limitation any and all persons or entities obligated to pay money or to perform some other act under the Collateral.
i. The words "Related Documents" mean and include without limitation all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
3. Grantor’s Waiver. Except as otherwise required under this Agreement or by applicable Nation law, Grantor waives any defenses that may arise because of any action or inaction of the Nation, including without limitation any failure of the Nation to realize upon the Collateral or any delay by the Nation in realizing upon the Collateral; and Grantor agrees to remain liable under the Note no matter what action the Nation takes or fails to take under this Agreement.
4. Rights Of Setoff. Grantor hereby grants the Nation a contractual possessory security interest in and hereby assigns, conveys, delivers, and transfers all of Grantor’s rights, title and interest in and to Grantor’s member distributions with the Nation. Grantor authorizes the Nation, to the extent permitted by applicable Nation law, to charge or setoff all Indebtedness against any and all such distributions.
5 . Grantor’s Representations And Warranties With Respect To The Collateral. Grantor represents and warrants to the Nation that:
a. Ownership. Grantor is the lawful owner of the Collateral free and clear of all security interests, liens, encumbrances and claims of others, except as disclosed to and accepted by the Nation in writing prior to execution of this Agreement.
b. Right to Pledge. Grantor has the full right, power and authority to enter into this Agreement and to pledge the Collateral.
c. Binding Effect. This Agreement is binding upon Grantor, as well as Grantor’s heirs, successors, representatives and assigns, and is legally enforceable in accordance with its terms.
d. No Further Assignment. Grantor has not, and will not, sell, assign, transfer, encumber or otherwise dispose of any of Grantor’s rights in the Collateral except as provided in this Agreement.
e. No Defaults. There are no defaults existing under the Collateral, and there are no offsets or counterclaims to the same. Grantor will strictly and promptly perform each of the terms, conditions, covenants and agreements contained in the Collateral which are to be performed by Grantor, if any.
f. No Violation. The execution and delivery of this agreement will not violate any Nation law or agreement governing Grantor or to which Grantor is a party, and its certificate or articles of incorporation and bylaws do not prohibit any term or condition of this Agreement.
6. Nation’s Rights And Obligations With Respect To Collateral. The Nation, at the Nation’s election, may hold the Collateral until all the Indebtedness has been paid and satisfied and thereafter may deliver the Collateral to any Grantor. The Nation shall have the following rights in addition to all other rights it may have by Nation law:
a. Income and Proceeds from the Collateral. The Nation may receive all Income and Proceeds and add it to the Collateral. Grantor agrees to deliver to the Nation immediately upon receipt of demand notice for same, in the exact form received and without commingling with other property, all Income and Proceeds from the Collateral which may be received by, paid, or delivered to Grantor or for Grantor’s account whether as an addition to, in discharge of, in substitution of, or in exchange for any of the Collateral.
b. Application of Cash. At the Nation’s option, the Nation may apply any cash, whether included in the Collateral or received as Income and Proceeds or through liquidation, sale, or retirement, of the Collateral, to the satisfaction of the Indebtedness or such portion thereof as the Nation shall choose, whether or not matured.
c. Transactions with Others. The Nation may (a) extend time for payment or other performance, (b) grant a renewal or change in terms or conditions or (c) compromise, compound or release any obligation, with any one or more Obligors, endorsers, or Guarantors of the Indebtedness as the Nation deems advisable without obtaining the prior written consent of Grantor, and no such act or failure to act shall affect the Nation’s rights against Grantor or the Collateral.
d. All Collateral Secures Indebtedness. All Collateral shall be security for the Indebtedness.
e. Collection of Collateral. The Nation, at the Nation’s option may, but need not, collect directly from the Obligors on any of the Collateral all Income and Proceeds or other sums of money and other property due and to become due under the Collateral, and Grantor authorizes and directs the Obligors, if the Nation exercises such option, to pay and deliver to the Nation all Income and Proceeds and other sums of money and other property payable by the terms of the Collateral and to accept the Nation’s receipt for the payments.
f. Power of Attorney. Grantor irrevocably appoints the Nation as Grantor’s attorney-in-fact, with full power of substitution, (a) to demand, collect, receive, receipt for, sue and recover all Income and Proceeds and other sums of money and other property which may now or hereafter become due, owing or payable from the Obligors in accordance with the terms of the Collateral; (b) to execute, sign and endorse any and all instruments, receipts, checks, drafts and warrants issued in payment for the Collateral; (c) to sell or compromise any and all claims arising under the Collateral, and in the place and stead of Grantor, execute and deliver Grantor’s release and acquittance for Grantor; (d) to fill any claim or claims or to take any action or institute or take part in any proceedings, either in the Nation’s own name or in the name of Grantor; or otherwise, which in the discretion of the Nation may seem to be necessary or advisable; and (e) to execute in Grantor’s name and to deliver to the Obligors on Grantor’s behalf, at the time and in the manner specified by the Collateral, any necessary instruments or documents.
g. Perfection of Security Interest. Upon request of the Nation, Grantor will deliver to the Nation any and all of the documents evidencing or constituting the Collateral. If the Collateral consists of securities for which no certificate has been issued, Grantor agrees, at the Nation’s option, either to request issuance of an appropriate certificate or to execute appropriate instructions on the Nation’s forms instructing the issuer, transfer agent, mutual fund company, or broker, as the case may be, to record on its books or records, by book-entry or otherwise, the Nation’s security interest in the Collateral. Grantor hereby appoints the Nation as Grantor’s irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue the security interest granted in this Agreement.
7. Expenditures By The Nation. If not discharged or paid when due, the Nation may (but shall not be obligated to) discharge or pay any amounts required to be discharged or paid by Grantor under this Agreement, including without limitation all liens, security interests, encumbrances, and other claims, at any time levied or placed on the Collateral. All such expenses shall become a part of the Indebtedness and, at the Nation’s option, will (a) be payable on demand, (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i) the term of any applicable insurance policy or (ii) the remaining term of the Note, or (c) be treated as a balloon payment which will be due and payable at the Note’s maturity. This Agreement also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which the Nation may be entitled upon the occurrence of an Event of Default.
8. Limitations On Obligations Of Nation. The Nation shall use ordinary reasonable care in the physical preservation and custody of the Collateral in the Nation’s possession, but shall have no other obligation to protect the Collateral or its value. The Nation shall have no liability for depreciation or deterioration of the Collateral.
9. Events Of Default. Each of the following shall constitute an Event of Default under this Agreement.
a. Default on Indebtedness. Failure of Grantor to make any payment when due on the Indebtedness.
b. Other Defaults. Failure of Grantor to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement, the Note or in any of the Related Documents or failure of Grantor to comply with or to perform any term, obligation, covenant or condition contained in any other agreement between the Nation and Grantor.
c. Death or Insolvency. The death of any Grantor or insolvency of Grantor, the appointment of a receiver for any part of Grantor’s property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any applicable bankruptcy or insolvency laws by or against Grantor.
d. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Grantor against the Collateral or any other collateral securing the Indebtedness.
e. Events Affecting Guarantor. Any of the preceding events occur with respect to any Guarantor of any of the Indebtedness or such Guarantor dies or becomes incompetent.
10. Rights And Remedies On Default. If an Event of Default occurs under this Agreement, at any time thereafter, the Nation may exercise any one or more of the following rights and remedies.
a. Accelerate Indebtedness. Declare all Indebtedness immediately due and payable, after giving all required notices of default and after passage of any grace period.
b. Collect the Collateral. Collect any of the Collateral and, at the Nation’s option and to the extent permitted by applicable Nation law, retain possession of the Collateral while suing on the Indebtedness.
c. Sell the Collateral. Sell the Collateral, at the Nation’s discretion, as a unit or in parcels, at one or more public or private sales. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, the Nation shall give or mail to Grantor, or any of them, notice at least ten (10) days in advance of the time and place of a public sale, or of the date after which any private sale may be made. Grantor agrees that any requirement of reasonable notice is satisfied if the Nation mails notice by ordinary mail addressed to Grantor. The Nation may be a purchaser at any public sale.
d. Register Securities. Register any securities included in the Collateral in the Nation’s name and exercise any rights normally incident to the ownership of securities.
e. Sell Securities. Sell any securities included in the Collateral in a manner consistent with applicable laws.
f. Foreclosure. Maintain a judicial suit for foreclosure and sale of the Collateral.
g. Transfer Title. Effect transfer of title upon sale of all or part of the Collateral. For this purpose, Grantor irrevocably appoints the Nation as its attorney-in-fact to execute endorsements, assignments and instruments in the name of Grantor and each of them (if more than one) as shall be necessary or reasonable.
h. Other Rights and Remedies. Have and exercise any or all of the rights and remedies of a secured creditor under Nation law.
i. Application of Proceeds. Apply any cash which is part of the Collateral, or which is received from the collection or sale of the Collateral, to reimbursement of any expenses, including attorney fees and court costs, whether or not there is a lawsuit and including any fees on appeal, incurred by the Nation in connection with the collection and sale of such Collateral and to the payment of the Indebtedness of Grantor to the Nation, with any excess funds to be paid to Grantor as the interests of Grantor may appear. Grantor agrees, to the extent permitted by Nation law, to pay any deficiency after application of the proceeds of the Collateral to the Indebtedness.
j. Cumulative Rights. All of the Nation’s rights and remedies, whether evidenced by this Agreement or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by the Nation to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Agreement, after Grantor’s failure to perform, shall not affect the Nation’s right to declare and to exercise its remedies.
11. Miscellaneous Provisions. The following miscellaneous provisions are part of this Agreement.
a. Amendments. This Agreement, the Note, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.
b. Applicable Law. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Oneida Indian Nation.
c. Attorneys’ Fees; Expenses. Grantor agrees that if the Nation hires an attorney to help enforce this Agreement or to collect any sums owing under this Agreement, Grantor will pay the Nation’s attorneys’ fees, and all of the Nation’s other collection expenses, whether or not there is a lawsuit and including without limitation additional legal expenses for bankruptcy proceedings.
d. Caption Headings. Caption headings in this Agreement are for convenience purposes only and are not to be used to interpret or define the provisions of this Agreement.
e. Multiple Parties. All obligations of Grantor under this Agreement shall be joint and several, and all references to Grantor shall mean each and every Grantor. This means that each of the persons signing below is responsible for all obligations in this Agreement.
f. Notices. All notices required to be given under this Agreement shall be given in writing and shall be effective when actually delivered if hand delivered or when deposited with a nationally recognized overnight courier or deposited as certified in the United States mail, first class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown above. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice is to change the party’s address. If there is more than one Grantor, notice to any Grantor will constitute notice to all Grantors. For notice purposes, Grantor agrees to keep the Nation informed at all times of Grantor’s current address(es).
g. Severability. If the Nation Court finds any provision of this Agreement to be invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable.
h. Successor Interests. Subject to the limitations set forth above on transfer of the Collateral, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns.
i. Waiver. The Nation shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by the Nation. No delay or omission on the part of the Nation in exercising any right shall operate as a waiver of such right or any other right. A waiver by the Nation of a provision of this Agreement shall not prejudice or constitute a waiver of the Nation’s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by the Nation, nor any course of dealing between the Nation and Grantor, shall constitute a waiver of any of the Nation’s rights or of any of Grantor’s obligation as to any future transactions. Whenever the consent of the Nation is required under this Agreement, the granting of such consent by the Nation in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of the Nation.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS PLEDGE AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED .
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GRANTOR: |
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EXHIBIT A
DESCRIPTION OF COLLATERAL
Grantor hereby grants a continuing security interest in the following:
Back to TopAll of Grantor’s right, title and interest in and to .