ESCROW AGREEMENT
THIS ESCROW AGREEMENT made and entered into this ____ day of
June, 1997, by and between Charthouse Suites Vacation Ownership,
Inc., a Florida corporation with offices at 000 X. Xxxxxxx Xxxx.,
Xxxxxxxxxx, XX 00000 (hereinafter referred to as "Charthouse"),
and Xxxxxxx Xxxxxxxx, Broker, a Florida Real Estate Broker
(hereinafter referred to as "Escrow Agent").
WHEREAS, Charthouse has rights to a certain property known
as Charthouse Suites Hotel, more particularly described on
Exhibit A attached hereto and made a part hereof (hereinafter
referred to as the "Project"); and
WHEREAS, Escrow Agent is authorized to act as an escrow
agent for timeshare plans established in accordance with the
Florida Statutes Chapter 721; and
WHEREAS, Charthouse desires that Escrow Agent act as escrow
agent for the Project pursuant to the terms of this Agreement and
in accordance with the laws and provisions of the Florida
Statutes Chapter 721. The terms used in this Agreement shall be
deemed to have the meanings set forth in the Florida Statutes,
Chapter 721.05, as amended.
NOW, THEREFORE, in consideration of the mutual promises and
other good and valuable consideration, the sufficiency and
validity hereby acknowledged, the parties agree as follows:
1. Representations. The representations set forth above are
true and correct.
2. Escrow Account. Charthouse does hereby establish an escrow
account with Escrow Agent for the purpose of protecting deposits
made by purchasers of the Charthouse Vacation Interests (herein
defined as persons contracting with the Charthouse for the
purposes of acquiring Charthouse Vacation Interests in the
Project).
3. Receipt and Disbursement of Escrowed Funds.
A. One hundred percent (100%) of all funds or other
property which is received from or on behalf of purchasers shall
be deposited with the Escrow Agent. Funds appropriate may be
released from escrow only as follows:
1. Cancellation. (a) In the event a purchaser gives a
notice of cancellation pursuant to Florida Statutes
Chapter 721.10 in the appropriate time period
allowed under Chapter 721 or as otherwise entitled
to cancel the sale of the Interest. The funds or
property received from or on behalf of the purchaser
or the proceeds thereof shall be returned to the
purchaser. Such refund shall be made within 20 days
of the demand of the purchaser or within five
(5) days after receipt of funds from the purchaser's
cleared check, whichever is later. The Charthouse
shall notify Escrow Agent immediately of receipt of
a notice of cancellation.
(b) If the purchaser has received benefits under the
contract prior to the effective date of the
cancellation the funds or property to be returned to
the purchaser may be reduced by the proportion of
the contract benefits actually received as set forth
in the Charthouse Suites Vacation License Plan,
attached hereto.
2. Purchaser's Default. Following expiration of the 10
day cancellation period if the purchaser defaults in
the performance of his obligations under the terms
of the contract or such other agreement by which the
seller sells the Charthouse Vacation Interests
Charthouse shall provide an affidavit to Escrow
Agent requesting release of the escrowed funds for
the property and shall provide a copy of such
affidavit to the purchaser which has defaulted. The
Charthouse's affidavit as required herein shall
include: (a) Charthouse's statement that the
purchaser has defaulted and the Charthouse has not;
(b) a brief explanation of the nature of the default
and the date of its occurrences; (c) a statement
that pursuant to the terms of the contract the
Charthouse is entitled to the funds held by the
escrow; and (d) a statement that Charthouse has not
received from the purchaser any written notice of
dispute between the purchaser and Charthouse or
claimed by the purchaser to the escrow.
3. Compliance with Conditions. (a) If no cancellation
or default has occurred, Escrow Agent may release
the escrowed funds or property upon presentation of:
(1) an affidavit by the Charthouse that it has met
all of the following conditions:
(a) expiration of the cancellation;
(b) completion of construction (which Charthouse
represents has already occurred); and
(c) closing.
(b) Evidence that the timeshare estate is free and
clear of all the claims of any interest holders
other than the claims of interest holders that
through recorded instruments are irrevocably
made subject to the Charthouse Suites License
Plan and the use rights of the purchasers made
available through the Charthouse Suites Vacation
License Plan or that are subject of a recorded
nondisturbance notice to creditors instrument
that complies with Chapter 721.08(3) F.S.
4. Investment of Escrowed Funds. Escrow Agent may invest any
escrowed funds in securities of the United States Government, or
any agency thereof, or in savings or time deposits and
institutions insured by an agency of the United States
Government. The right to receive the interest generated by any
such investment shall be paid to the party to whom the escrowed
funds or properties are paid unless otherwise specified by
contract.
5. Separate Books and Records. Escrow Agent shall maintain
separate books and records for the Project and shall maintain
such books and records in accordance with good accounting
practices.
6. General Obligations and Duties of the Escrow Agent. Escrow
Agent shall maintain the accounts called for in the agreement
only in such a manner as to be under the direct supervision and
control of the Escrow Agent. A fiduciary relationship shall exist
between the Escrow Agent and the purchasers. Escrow Agent shall
retain all affidavits received pursuant to this Agreement and as
provided in Florida Statutes 721.08 for a period of five (5)
years. Escrow Agent shall deliver monthly statements to the
Charthouse which statements will indicate the:
A. The escrowed funds received for the Project and the
purchasers who made payments of the funds so deposited;
B. The funds disbursed for the Project and to whom the
funds were disbursed; and
C. The remaining balance of the funds held in escrow for
the Project.
7. Responsibilities of Charthouse. Charthouse agrees that it
shall at all times, file all required documents with the Division
of Florida Land Sales and Condominiums or any successor thereof
(the "Division") and at all times comply with other terms and
provisions of the Florida Statutes, Chapter 721 and all other
federal, state and local regulations affecting the Project.
Charthouse does hereby agree to indemnify and to hold Escrow
Agent harmless for any liability of the Escrow Agent which shall
occur as a result of a breach or violation of Charthouse or of
any term or condition of the Florida Statutes, Chapter 721 or any
other rule, regulation or law affecting the Project. Escrow Agent
agrees that Division shall have the right, upon reasonable
notice, to inspect the books and records of the Escrow Agent
regarding monies deposited and disbursed referencing the Project.
8. Other Assurances. Notwithstanding anything contained in
this Agreement to the contrary, funds may be released from the
escrow following the acceptance and approval by the Director of
the Division of other assurances as described in Florida Statutes
Chapter 721.08(2).
9. Disputes. In the event that Escrow Agent shall receive
conflicting demands for the escrowed funds or property, the
Escrow Agent shall promptly notify the Division of the dispute
and either, with the consent of all parties, submit the matter to
arbitration or, by interpleader, or otherwise seek an
adjudication of the matter by court. In the event of any such
dispute or in the event of any litigation arising out of any of
the terms of this provision of this Agreement, Escrow Agent shall
be entitled to recover its reasonable attorney's fees and court
costs at trial and appellate levels.
10. Terms and Agreements.
A. The agreement shall remain in effect unless and until it
is canceled (1) upon written notice given by the Charthouse to
the Escrow Agent of cancellation of designation of the Escrow
Agent to act and serve in such capacity, in which such event, the
cancellation shall take effect not later than 30 days after
notice to Escrow Agent of said cancellation; or (2) Escrow Agent
may resign as Escrow Agent at any time upon giving notice to
Charthouse of its desire to do so provided, however, that
resignation by the Escrow Agent shall take effect not sooner than
30 days after the giving of notice of resignation.
B. Upon termination of the duties of the Escrow Agent in
either manner described above, Charthouse shall immediately
designate a new Escrow Agent and the Escrow Agent shall deliver
any and all funds held by it in escrow and any and all contracts
or documents and copies, if not the originals, maintained by
Escrow Agent to the new Escrow Agent.
C. Any compensation the Charthouse agrees to pay Escrow
Agent for the performance of services provided herein shall not
be paid from the principal escrowed or from any interest accruing
thereto. Neither shall compensation be automatically deducted
from escrowed funds by any financial institution, including the
financial institution acting as Escrow Agent.
11. Nonexclusive Agreement. The parties here agree that nothing
herein shall prohibit Escrow Agent from serving in a similar
capacity on behalf of other developers or persons, provided,
however, that any other escrowed funds maintained by the Escrow
Agent shall be maintained separately, pursuant to separate books
and records for each timeshare plan.
12. Notices. All notices, certificates, requests, demands,
materials and other communications hereunder shall be in writing
and shall be deemed to have been duly given upon notice thereof
by hand to the appropriate addresses set forth below as evidenced
by a signed receipt, on the first business day after mailing, by
the U.S. registered or certified mail, return receipt requested,
postage prepaid addressed as follows:
If to the Charthouse: Charthouse Suites Vacation
Ownership, Inc.
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxx
If to Escrow Agent: Mr. Xxxxxxx Xxxxxxxx
000 Xxxxx Xxxxx Xxxxx
Xxxxxx Xxxxx Xxxxx, XX
00000
13. Binding Agreement. The agreement shall be binding upon
Charthouse and Escrow Agent and their successors and assignees.
14. Fees and Expenses of the Escrow Agent. The Escrow Agent
acknowledges that upon the execution and delivery of this
Agreement the full amount of all of the fees and expenses which
are or will become due to it for the performance of its
obligations throughout the term of this Agreement have been paid
to it or that arrangements satisfactory to it for the payment of
those amounts have been made. Upon the end of each calendar
quarter, the Escrow Agent as a fee for sevices rendered under
this Agreement shall be paid $10 by Charthouse for each purchaser
who deposits funds in the escrow account, plus all ordinary and
reasonable out of pockets expenses and disbursements. The Escrow
Agent has no lien upon funds held pursuant to this Agreement or
for payment of its fees or services under this Agreement or for
payment of any other amounts due it for whatever reason. Without
limiting the foregoing, the Escrow Agent expressly waives any
right of setoff or counterclaim against the escrow funds.
Notwithstanding any of the foregoing, monies in the escrow funds
may be used to pay fees incurred in the ordinary course with
disbursements of the escrow funds, including, but not limited to,
wire transfer fees.
The Escrow Agent shall not be liable to Charthouse, except for
its own gross negligence or willful misconduct. The Charthouse
shall indemnify and hold the Escrow Agent harmless from and
against any and all losses, liabilities, claims, actions, damages
and expenses, including reasonable attorneys fees and
disbursements arising out of and in connection with the Agreement
("Indemnifiable Expenses"), except to the extent that such
Indemnifiable Expenses are based upon gross negligence or willful
misconduct claims against the Escrow Agent that are successfully
asserted.
The Escrow Agent may rely on any notice, instrument or other
written communication delivered to it in accordance with this
Agreement. The Escrow Agent shall have no duty to determine the
authenticity or correctness of the notice or facts stated
therein. The Escrow Agent may assume that any person purporting
to give the notice or accept and acknowledge receipt of the
notice or to make any statement or execute any document in
connection with the provisions of this Agreement has been duly
authorized to do so.
15. Counterparts; Headings. This Agreement may be executed in
several counterparts, each of which shall be deemed an original,
but such counterparts shall together constitute but one and the
same agreement. The Section headings in this Escrow Agreement are
inserted for convenience of reference only and shall not
constitute a part hereof.
16. Interpretation. Unless the context requires otherwise, all
words used in this Escrow Agreement in the singular number shall
extend to and include the plural, all words in the plural number
shall extend to and include the singular, and all words in any
gender shall extend to and include all genders.
17. Severability. If any provision, clause or part of this
Agreement, or the application thereof under certain
circumstances, is held invalid, the remainder of this Agreement,
and the application of such provision, clause or part under other
circumstances, shall not be affected thereby.
18. Governing Law. This Agreement shall be construed and
interpreted according to the internal laws of the State of
Florida.
19. Amendment. No amendment of this Agreement shall be effective
unless in writing and signed by all of the parties hereto.
20. Entire Agreement. This Agreement and the other documents
referred to herein or therein constitutes the entire
understanding of the parties with respect to the subject matter
hereof. There are no restrictions, promises, warranties,
covenants or undertakings other than those expressly set forth
herein and therein. This Agreement supersedes all prior
negotiations, agreements and undertakings between the parties
with respect to such subject matter.
21. No Reliance. No third party is entitled to rely on any of
the representations, warranties and agreements of the parties
contained in this Agreement. The parties assume no liability to
any third party because of any reliance on the representation,
warranties and agreements of the parties contained in this
Agreement.
IN WITNESS WHEREOF, Charthouse and Escrow Agent have caused
this Escrow Agreement to be executed in their respective
corporate names by the undersigned authorized officers this ___
day of June, 1997.
Charthouse ESCROW AGENT: Xxxxxxx Xxxxxxxx
CHARTHOUSE SUITES VACATION
OWNERSHIP, INC.
By: __________________________ By: ___________________________
Its:__________________________
