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EXHIBIT 10.1
CONTRACT OF SALE
This Agreement is entered into by and between XXXXXX XXXXXXX,
individually and as Co-Trustee of the Xxxxxxx PNC Trust, and PNC BANK, N.A., as
Co-Trustee of the Xxxxxxx PNC Trust (collectively "Seller") and SILVERLEAF
RESORTS, INC., a Texas corporation ("Purchaser").
W I T N E S S E T H:
FOR AND IN CONSIDERATION of the promises, undertakings, and mutual
covenants of the parties herein set forth, Seller hereby agrees to sell and
Purchaser hereby agrees to purchase and pay for all that certain property
hereinafter described in accordance with the following terms and conditions:
ARTICLE I
PROPERTY
The conveyance by Seller to Purchaser shall include the following
described tracts or parcels of land, together with all and singular the rights
and appurtenances pertaining to such land including any right, title and
interest of Seller in and to adjacent strips or gores, streets, alleys, or
rights-of-way and all rights of ingress and egress thereto:
Those certain tracts of land located in the Township of
Xxxxxx, Luzerne County, Pennsylvania, commonly known as excepted
Parcels 8X, 9X and 11X and any other parcels of land or legal interest
held by Seller located within and formerly part of Beech Mountain
Lakes.
Hereafter the aforesaid real property is referred to as the "Subject Property."
The conveyance by Seller to Purchaser shall also include all buildings and other
improvements on the Subject Property.
ARTICLE II
PURCHASE PRICE
The purchase price to be paid by Purchaser to Seller for the Subject
Property shall be the sum of Three Hundred Thousand and No/100 Dollars
($300,000.00). The purchase price shall be payable all in cash at the closing.
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ARTICLE III
XXXXXXX MONEY
Within two (2) business days after final execution of this Contract by
all parties hereto, Purchaser shall deliver Purchaser's check in the amount of
Sixty Thousand and No/100 Dollars ($60,000.00) to Xxxxx Chant, 000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx 00000 (the "Escrow Agent"). The Escrow Agent shall
immediately cash the xxxxxxx money check and deposit the proceeds thereof in an
interest bearing account, the earnings from which shall accrue to the benefit of
Purchaser (hereinafter the proceeds of the xxxxxxx money check shall be referred
to as the "xxxxxxx money"). If Purchaser does not terminate this Contract during
the Title Review Period (as defined in Article V hereinbelow), then, within two
(2) business days after the expiration of the Title Review Period, the Escrow
Agent shall immediately disburse the entire $60,000.00 xxxxxxx money deposit to
Seller; upon such disbursement the $60,000.00 xxxxxxx money deposit shall be
non-refundable to the Purchaser except in the event of a default by Seller
hereunder, but if this Contract closes, then the entire $60,000.00 xxxxxxx money
deposit shall be applied in partial satisfaction of the purchase price payable
at closing. Notwithstanding the foregoing or anything to the contrary contained
herein, in no event shall the $60,000.00 xxxxxxx money deposit be disbursed to
Seller until or unless Seller has complied with Seller's obligation to withdraw
as a party from Case No. 2001-C of 1999.
In the event that this Contract is closed, then all xxxxxxx money shall
be applied in partial satisfaction of the purchase price. In the event that this
Contract is not closed, then the xxxxxxx money shall be disbursed in the manner
provided for elsewhere herein.
ARTICLE IV
PRE-CLOSING OBLIGATIONS OF PURCHASER AND SELLER
As soon as reasonably possible after execution of this Contract by all
parties hereto, Seller, at Purchaser's sole cost and expense, shall obtain and
deliver to Purchaser copies of the following (collectively the "Purchaser Due
Diligence Items"):
a. An updated survey of the Subject Property dated subsequent
to the date of execution of this Contract and prepared by a licensed
professional engineer or surveyor acceptable to Purchaser, which Survey
shall: (a) include a metes and bounds legal description of the Subject
Property; (b) accurately show all improvements, encroachments and uses
and accurately show all easements and encumbrances visible or listed on
the Title Commitment (identifying each by recording reference if
applicable); (c) recite the number of acres included in the
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Subject Property; (d) state whether the Subject Property (or any
portion thereof) lies within a flood zone, or flood prone area; and (e)
contain a certificate verifying that the Survey was made on the ground,
that the Survey is correct, that there are no improvements,
encroachments, easements, uses or encumbrances except as shown on the
survey plat, that the area represented for the Subject Property has
been certified by the surveyor as being correct, and that the Subject
Property does not lie within any flood zone or flood prone area, except
as indicated thereon. Unless otherwise agreed by Seller and Purchaser,
the metes and bounds description contained in the Survey shall be the
legal description employed in the documents of conveyance of the
Subject Property; and
b. A current commitment (the "Title Commitment") for the
issuance of an owner's policy of title insurance to the Purchaser,
together with good and legible copies of all documents constituting
exceptions to Seller's title as reflected in the Title Commitment.
By execution hereof, Xxxxxx Xxxxxxx, individually and as Co-Trustee of the
Xxxxxxx PNC Trust, and acting in his capacity as Co-Trustee of the Xxxxxxx PNC
Trust, will and does hereby agree to withdraw as a party from Case No. 2001-C of
1999 and from any involvement whatsoever by Xxxxxx Xxxxxxx, any members of his
family, and the Xxxxxxx PNC Trust, including the financing of any litigation,
objections or appeals by third parties, in any objection, appeals, or litigation
concerning the application by Purchaser for a timeshare project at and upon
Beech Mountain Lakes, Xxxxxx Township, Luzerne County, Pennsylvania. Xxxxxxx
agrees that from and after the date hereof neither Xxxxxxx nor any members of
his family nor the Xxxxxxx PNC Trust will become involved in any controversies
or litigation that might delay or hinder Purchaser with respect to the
development of Purchaser's proposed timeshare project at Beech Mountain Lakes.
Xxxxxxx agrees to have Case No. 2001-C of 1999 withdrawn by Xxxxxxx. Purchaser
shall simultaneously with the withdrawal of Case No. 2001-C of 1999 file a
dismissal with prejudice of the declaratory judgment action filed to Case No.
2433-C of 1999.
ARTICLE V
TITLE INSPECTION PERIOD
Purchaser shall have a period of time commencing on the date of
execution of this Contract and expiring five (5) days from the date on which
Purchaser obtains the last of the items to be obtained by Purchaser pursuant to
Article IV(a) and (b) hereinabove within which to review and approve the status
of Seller's title to the Subject Property (the "Title Review Period"), which
Title Review Period shall not exceed forty-five (45) days without a written
explanation from Purchaser and a written consent to extend the Title Review
Period by Seller, which consent shall not be unreasonably withheld. If the
information to be provided to or obtained by Purchaser pursuant to the
provisions of Article IV hereinabove reflects or discloses any defect, exception
or other matter
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affecting the Subject Property ("Title Defects") that renders title to the
Subject Property unmarketable, then prior to the expiration of the Title Review
Period Purchaser shall provide Seller with written notice of Purchaser's
objections. Seller may, at Seller's sole option, elect to cure or remove the
objections raised by Purchaser; provided, however, that Seller shall have no
obligation to do so. Should Seller elect to attempt to cure or remove the
objections, Seller shall have ten (10) days from the date of Purchaser's written
notice of objections (the "Cure Period") in which to accomplish the cure. In the
event Seller either elects not to cure or remove the objections or is unable to
accomplish the cure prior to the expiration of the Cure Period, then Seller
shall so notify Purchaser in writing specifying which objections Seller does not
intend to cure, and then Purchaser shall be entitled, as Purchaser's sole and
exclusive remedies, either to terminate this Agreement by providing written
notice of termination to Seller within ten (10) days from the date on which
Purchaser receives Seller's no-cure notice or waive the objections and close
this transaction as otherwise contemplated herein. If Purchaser shall fail to
notify Seller in writing of any objections to the state of Seller's title to the
Subject Property as shown by the Survey and Title Commitment, then Purchaser
shall be deemed to have no objections to the state of Seller's title to the
Subject Property as shown by the Survey and Title Commitment, and any exceptions
to Seller's title which have not been objected to by Purchaser and which are
shown on the Survey or described in the Title Commitment shall be considered to
be "Permitted Exceptions." It is further understood and agreed that any Title
Defects which have been objected to by Purchaser and which are subsequently
waived by Purchaser shall be Permitted Exceptions. Notwithstanding the foregoing
or anything to the contrary contained herein, Purchaser agrees that Purchaser
will not raise any issues which have been asserted in the pleadings filed in
connection with the declaratory judgment action filed in Case No. 2433-C of 1999
as a title defect.
ARTICLE VI
REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SELLER
Seller represents and warrants to Purchaser that at closing Seller
shall convey the Subject Property to Purchaser free and clear of all liens,
encumbrances, security interests, leases, and easements except for the Permitted
Exceptions. At closing , title to the Subject Property shall be good and
marketable and shall be such as will be insured at regular rates, without
exception, by a title insurance company of Purchaser's choice licensed to do
business in Pennsylvania.
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Seller further covenants and agrees with Purchaser that, from the date
hereof until the closing, Seller shall not sell, assign, or convey any right,
title, or interest whatsoever in or to the Subject Property, or create or permit
to exist any lien, security interest, easement, encumbrance, charge, or
condition affecting the Subject Property (other than the Permitted Exceptions)
without promptly discharging the same prior to closing.
All of the foregoing representations and warranties of Seller are made
by Seller both as of the date hereof and as of the date of the closing
hereunder. Notwithstanding the foregoing or anything to the contrary contained
herein, it is understood and agreed that the representations and warranties set
forth hereinabove shall survive the closing of this Contract only for a period
of one (1) year following the closing date, but not thereafter, and Seller shall
have no liability of any kind whatsoever for any breach thereof except to the
extent a claim is asserted against Seller within such one (1) year period.
ARTICLE VII
CONDITIONS PRECEDENT TO CLOSING
The obligation of Purchaser to close this Contract shall, at the option
of Purchaser, be subject to the following conditions precedent:
a. All of the representations, warranties and agreements of
Seller set forth in this Contract shall be true and correct in all
material respects as of the date hereof and at closing, and Seller
shall not have on or prior to closing, failed to meet, comply with or
perform in any material respect any conditions or agreements on
Seller's part as required by the terms of this Contract;
b. There shall be no change in the matters reflected in the
Title Commitment, and there shall not exist any encumbrance or title
defect affecting the Subject Property not described in the Title
Commitment except for the Permitted Exceptions; and
c. There shall be no changes in the matters reflected in the
Survey, and there shall not exist any easement, right-of-way,
encroachment, waterway, pond, flood plain, conflict or protrusion with
respect to the Subject Property not shown on the Survey;
If any such condition is not fully satisfied by closing, Purchaser may
terminate this Contract by written notice to Seller whereupon this Contract
shall be cancelled, all xxxxxxx money shall be returned to Purchaser and
thereafter neither Seller nor Purchaser shall have any continuing obligations
one unto the other.
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ARTICLE VIII
CLOSING
The closing hereunder shall take place at the offices of the title
company which issues the Title Commitment. The closing shall occur within ten
(10) days from the date on which Seller has received final approval of the
planning and zoning for Seller's proposed development at Beech Mountain Lakes
from Xxxxxx Township and all appeal periods regarding such planning and zoning
approval have expired, but in no event shall the closing occur later than one
hundred eighty (180) days from the date of execution of this Contract. Purchaser
shall notify Seller at least five (5) days in advance of the exact time and date
of closing.
ARTICLE IX
SELLER'S OBLIGATIONS AT CLOSING
At the closing, Seller shall do the following:
a. Deliver to Purchaser a deed covering the Subject Property,
duly signed and acknowledged by Seller, which deed shall be in form
reasonably acceptable to Purchaser for recording and shall convey to
Purchaser good and marketable title to the Subject Property, free and
clear of all liens, rights-of-way, easements, and other matters
affecting title to the Subject Property, except for the Permitted
Exceptions.
b. Deliver or cause to be delivered to Purchaser an ALTA
owner's form of title insurance policy (the "Title Policy") insuring
Purchaser in the amount of the purchase price that Purchaser has
acquired good and marketable title to the Subject Property, subject
only to the Permitted Exceptions. Purchaser shall be entitled to
request the title company to provide, at Purchaser's sole cost and
expense, such endorsements (or amendments) to the Title Policy as
Purchaser may reasonably require so long as such endorsements or
amendments impose no additional liability on Seller or delay the
closing. Purchaser acknowledges and agrees that the Title Policy may be
actually delivered within a reasonable time following the closing so
long as Purchaser has received at closing a current binding title
commitment obligating the title company to deliver the Title Policy.
Purchaser shall pay the premium for a standard owner's form of title
insurance policy in the amount of the purchase price, and Purchaser
shall pay the cost of any title endorsements required by Purchaser and
the cost of any reinsurance required by Purchaser.
c. Deliver a non-withholding statement that will satisfy the
requirements of Section 1445 of the Internal Revenue Code so that
Purchaser is not required to withhold any portion of the purchase price
for payment to the Internal Revenue Service.
d. Deliver to Purchaser any other documents or items necessary
or convenient in the reasonable judgment of Purchaser to carry out the
intent of the parties under this Contract.
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ARTICLE X
PURCHASER'S OBLIGATIONS AT CLOSING
At the closing, Purchaser shall deliver to Seller the purchase price in
cash.
ARTICLE XI
COSTS AND ADJUSTMENTS
At closing, the following items shall be adjusted or prorated between
Seller and Purchaser:
a. Any real estate transfer taxes or sales taxes payable in
connection with the sale of the Subject Property shall be divided
equally between Seller and Purchaser.
b. Ad valorem taxes for the Subject Property for the current
calendar year shall be prorated as of the date of closing, and Seller
shall pay to Purchaser in cash at closing Seller's pro rata portion of
such taxes. Seller's pro rata portion of such taxes shall be based upon
taxes actually assessed for the current calendar year or, if for any
reason such taxes for the Subject Property have not been actually
assessed, such proration shall be based upon the amount of such taxes
for the immediately preceding calendar year, and adjusted by cash
settlement when exact amounts are available. However, anything herein
to the contrary notwithstanding, any tax abatement or refund for a
period of time prior to closing shall belong to Seller.
c. All other closing costs, including but not limited to,
recording and escrow fees shall be paid by the Purchaser; provided,
however, that Seller and Purchaser shall each be responsible for the
fees and expenses of their respective attorneys.
Seller agrees to indemnify and hold Purchaser harmless of and from any
and all liabilities, claims, demands, suits, and judgments, of any kind or
nature (except those items which under the terms of this Contract specifically
become the obligation of Purchaser), brought by third parties and based on
events occurring on or before the date of closing and which are in any way
related to the ownership, maintenance, or operation of the Subject Property, and
all expenses related thereto, including, but not limited to, court costs and
attorneys' fees.
Purchaser agrees to indemnify and hold Seller harmless of and from any
and all liabilities, claims, demands, suits, and judgments, of any kind or
nature, brought by third parties and based on events occurring subsequent to the
date of closing and which are in any way related to the ownership, maintenance
or operation of the Subject Property, and all expenses related thereto,
including, but not limited to, court costs and attorneys' fees.
Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this Article XI shall survive the closing hereunder.
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ARTICLE XII
ENTRY ON PROPERTY
Purchaser, Purchaser's agents, employees, servants, or nominees, are
hereby granted the right to enter upon the Subject Property at any time prior to
closing for the purpose of inspecting the Subject Property and conducting such
engineering and mechanical tests as Purchaser may deem necessary or advisable,
any such inspections and tests to be made at Purchaser" sole expense. Purchaser
agrees to indemnify and hold Seller harmless from and against any and all
losses, damages, costs, or expenses incurred by Seller as a result of any
inspections or tests made by Purchaser.
ARTICLE XIII
POSSESSION OF PROPERTY
Possession of the Property free and clear of all uses and
encroachments, except the Permitted Exceptions, shall be delivered to Purchaser
at closing.
ARTICLE XIV
NOTICES
All notices, demands, or other communications of any type given by the
Seller to the Purchaser, or by the Purchaser to the Seller, whether required by
this Contract or in any way related to the transaction contracted for herein,
shall be void and of no effect unless given in accordance with the provisions of
this paragraph. All notices shall be in writing and delivered to the person to
whom the notice is directed, either in person, by facsimile transmission, or by
United States Mail, as a registered or certified item, return receipt requested.
Notices delivered by mail shall be deemed given when deposited in a post office
or other depository under the care or custody of the United States Postal
Service, enclosed in a wrapper with proper postage affixed, addressed as
follows:
Seller: Xxxxxx Xxxxxxx
R.R. 1, Xxx 000
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Purchaser: Silverleaf Resorts, Inc.
0000 Xxxxxxxxx Xx., Xxxxx 000
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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With Required Copy to: Meadows, Owens, Collier, Reed,
Cousins & Blau, L.L.P.
0000 Xxxx xx Xxxxxxx Xxxxx
000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
ARTICLE XV
REMEDIES
In the event that Seller fails to timely comply with all conditions,
covenants and obligations of Seller hereunder, it shall be an event of default
and Purchaser shall have the option (i) to terminate this Contract by providing
written notice thereof to Seller, in which event the xxxxxxx money shall be
returned immediately to Purchaser by the Escrow Agent and the parties hereto
shall have no further liabilities or obligations one unto the other; (ii) to
waive any defect or requirement and close this Contract; or (iii) to xxx Seller
for specific performance or for damages. The exercise of any of the foregoing
remedies of Purchaser shall not in any manner be construed as a waiver of
Purchaser's right to seek specific performance or to xxx for damages, and in the
event of a default by Seller hereunder, Purchaser shall be entitled to enforce
specific performance hereunder or xxx Seller for damages.
In the event that Purchaser fails to timely comply with all conditions,
covenants, and obligations Purchaser has hereunder, such failure shall be an
event of default, and Seller's sole remedy shall be to receive the Xxxxxxx
Money. The Xxxxxxx Money is agreed upon by and between the Seller and Purchaser
as liquidated damages due to the difficulty and inconvenience of ascertaining
and measuring actual damages, and the uncertainty thereof, and no other damages,
rights, or remedies shall in any case be collectible, enforceable, or available
to the Seller other than in this paragraph defined, and Seller shall accept the
Xxxxxxx Money as Seller's total damages and relief.
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ARTICLE XVI
ASSIGNMENT
Purchaser shall have the right to nominate who shall take title and who
shall succeed to Purchaser's duties and obligations hereunder, or assign this
Contract to any person, firm, corporation, or other entity which Purchaser may,
at Purchaser's sole option, choose, and from and after such nomination or
assignment, wherever in this Contract reference is made to Purchaser such
reference shall mean the nominee or assignee who shall succeed to all the
rights, duties, and obligations of Purchaser hereunder.
ARTICLE XVII
INTERPRETATION AND APPLICABLE LAW
This Agreement shall be construed and interpreted in accordance with
the laws of the State of Pennsylvania. Where required for proper interpretation,
words in the singular shall include the plural; the masculine gender shall
include the neuter and the feminine, and vice versa. The terms "successors and
assigns" shall include the heirs, administrators, executors, successors, and
assigns, as applicable, of any party hereto.
ARTICLE XVIII
AMENDMENT
This Contract may not be modified or amended, except by an agreement in
writing signed by the Seller and the Purchaser. The parties may waive any of the
conditions contained herein or any of the obligations of the other party
hereunder, but any such waiver shall be effective only if in writing and signed
by the party waiving such conditions and obligations.
ARTICLE XIX
AUTHORITY
Each person executing this Contract warrants and represents that he is
fully authorized to do so.
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ARTICLE XX
ATTORNEYS' FEES
In the event it becomes necessary for either party to file a suit to
enforce this Contract or any provisions contained herein, the prevailing party
shall be entitled to recover, in addition to all other remedies or damages,
reasonable attorneys' fees and costs of court incurred in such suit.
ARTICLE XXI
DESCRIPTIVE HEADINGS
The descriptive headings of the several paragraphs contained in this
Contract are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions hereof.
ARTICLE XXII
ENTIRE AGREEMENT
This Contract (and the items to be furnished in accordance herewith)
constitutes the entire agreement between the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith. No representation,
warranty, covenant, agreement, or condition not expressed in this Contract shall
be binding upon the parties hereto or shall affect or be effective to interpret,
change, or restrict the provisions of this Contract.
ARTICLE XXIII
MULTIPLE ORIGINALS ONLY
Numerous copies of this Contract may be executed by the parties hereto.
Each such executed copy shall have the full force and effect of an original
executed instrument.
ARTICLE XXIV
ACCEPTANCE
Seller shall have until 5:00 o'clock p.m., September 20, 1999, to
execute and return a fully executed original of this Contract to Purchaser,
otherwise this Contract shall become null and void. Time is of the essence of
this Contract. The date of execution of this Contract by Seller shall be the
date of execution of this Contract. If the final date of any period falls upon a
Saturday, Sunday,
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or legal holiday under the laws of the State of Pennsylvania, then in such event
the expiration date of such period shall be extended to the next day which is
not a Saturday, Sunday, or legal holiday under the laws of the State of
Pennsylvania.
ARTICLE XXV
REAL ESTATE COMMISSION
Seller represents and warrants to Purchaser that Seller has not
contacted or entered into any agreement with any real estate broker, agent,
finder, or any other party in connection with this transaction, and that Seller
has not taken any action which would result in any real estate broker's,
finder's, or other fees or commissions being due and payable to any other party
with respect to the transaction contemplated hereby. Purchaser hereby represents
and warrants to Seller that Purchaser has not contracted or entered into any
agreement with any real estate broker, agent, finder, or any other party in
connection with this transaction, and that Purchaser has not taken any action
which would result in any real estate broker's, finder's, or other fees or
commissions being due or payable to any other party with respect to the
transaction contemplated hereby. Each party hereby indemnifies and agrees to
hold the other party harmless from any loss, liability, damage, cost, or expense
(including reasonable attorneys' fees) resulting to the other party by reason of
a breach of the representation and warranty made by such party herein.
Notwithstanding anything to the contrary contained herein, the indemnities set
forth in this Article XXV shall survive the closing.
ARTICLE XXVI
CONFIDENTIALITY
Seller and Purchaser hereby agree that the terms and conditions of this
Contract shall be kept confidential and shall not be disclosed by either party
in any manner whatsoever, either in whole or in part, except to persons within
their organizations or families, regulatory agencies, auditors and accountants,
and business-related entities who have a need to know as part of their duties
and responsibilities.
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EXECUTED on this the 15th day of September, 1999.
SELLER:
/s/ XXXXXX XXXXXXX
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XXXXXX XXXXXXX,
INDIVIDUALLY AND AS
CO-TRUSTEE OF THE XXXXXXX
PNC TRUST
PNC BANK, N.A., CO-TRUSTEE
OF THE XXXXXXX PNC TRUST
By: /s/ XXXXX X. XXXXXX
-----------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Its: Asst. V.P. & Trust Officer
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EXECUTED on this the 23rd day of September, 1999.
PURCHASER:
SILVERLEAF RESORTS, INC.
By: /s/ XXXXXX X. XXXX
-----------------------------------
Name: Xxxxxx X. Xxxx
---------------------------------
Its: CEO
----------------------------------
RECEIPT OF XXXXXXX MONEY AND ONE (1) EXECUTED COUNTERPART OF THIS CONTRACT IS
HEREBY ACKNOWLEDGED:
ESCROW AGENT:
/s/ XXXXX CHANT
------------------------------
XXXXX CHANT
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