CONTRACT OF SALE
Ex.
10.3
This
Contract is entered into by and
between XXXXXX X. XXXXX, XXXXXX X. XXXXX, XXXXXXX XXXXXXXX XXXXX, AND
XXXXX XXXXX XXXXX, TRUSTEES OF THE XXXXX FAMILY TRUST DATED JUNE 3, 1992, XXXXXX
X. XXXXX AND WIFE, P. XXXXXXX XXXXX, XXXXXXX XXXXXXXX XXXXX, AND XXXXX XXXXX
XXXXX (collectively "Seller"), and SILVERLEAF RESORTS,
INC. ("Purchaser").
WITNESSETH
:
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 that certain tract or parcel of land situated in Taney County,
Missouri, said tract containing approximately 37.54 acres and being more
particularly described in Exhibit "A" attached hereto and made a part hereof
for
all purposes, together with all and singular the rights and appurtenances
pertaining to such property including any right, title and interest of Seller
in
and to adjacent strips or gores, streets, alleys or rights-of-way, all rights
of
ingress and egress thereto, and all improvements and fixtures located on said
property (the foregoing property is herein referred to collectively
as 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 One Million
Three Hundred Seventy-Five Thousand and No/100 Dollars
($1,375,000.00). The purchase price shall be payable in the following
manner:
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A. $275,000.00
of
the total purchase price shall be payable in cash at the closing,
less any
xxxxxxx money deposits retained by
Seller;
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B. The
balance of the purchase price shall be paid by Purchaser’s execution
anddelivery at the closing of a promissory note (the “Note”) payable to
Seller in theoriginal principal amount of $1,100,000.00. The
Note shall provide and be secured as
follows:
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(i)
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The
Note shall bear interest from date of execution at the rate of six
(6%)percent per annum;
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(ii)
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The
Note shall be payable over a period of four (4) years in four successive
annual installments, the first of such installments to be due and
payable
on the first (1st)
anniversary
of the date of execution of the Note, and a like installment to be
due and
payable on each anniversary of the date of execution of the Note
thereafter until the Note is paid in full; the first three (3) of
such
installments shall each be in the amount of $275,000.00 of principal
plus
all then accrued but unpaid interest on the outstanding principal
balance
of the Note; the fourth (4th)
and final
installment shall be in the amount of the then remaining unpaid principal
balance of the Note plus all then accrued but unpaid interest
thereon;
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(iii)
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The
Note shall provide that no prepayment thereof shall be permitted
until
such time as that certain promissory note dated December 30, 2005,
in the
original principal amount of $720,000.00, executed by Purchaser and
payable to the order of Xxxxxx X. Xxxxx, Trustee of the Xxxxx Family
Trust
dated June 3, 1992 (the “Prior Indebtedness”) has been paid in full;
thereafter, the Note may be prepaid at any time, in whole or in part,
without premium or penalty; any partial prepayment shall be applied
to the
principal due on the Note;
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(iv)
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The
Note shall further provide that the execution thereof shall impose
upon
Purchaser no personal liability whatsoever for payment of the indebtedness
evidenced thereby, or any sum owed under the Deed of Trust (as defined
hereinbelow) which will secure payment of the Note and the Seller
shall
seek no personal judgment against Purchaser for the payment of the
debt
evidenced by the Note or any deficiency arising from a foreclosure
sale
under the Deed of Trust, it being understood and agreed that the
sole
recourse of Seller for collection of the Note shall be against the
Subject
Property described in the Deed of
Trust;
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(v)
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The
Deed of Trust shall contain a covenant and prohibition on the part
of the
Purchaser against disturbing and/or removing any timber, dirt, gravel,
or
rock from the Subject Property until the same is released from the
Deed of
Trust.
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(vi)
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The
Note shall be secured by a first Deed of Trust (the “Deed of Trust”) to be
executed in Seller’s favor at the closing; both the Note and the Deed of
Trust shall provide that, upon the occurrence of a default thereunder,
Seller must provide Purchaser with written notice thereof, and permit
Purchaser to have ten (10) days from the date of the notice within
which
to cure the default before exercising any of Seller’s remedies
thereunder;
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(vii)
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Both
the Note and the Deed of Trust shall provide that a default in the
payment
of the Prior Indebtedness or in the performance of any covenant contained
in the documents executed in connection therewith shall constitute
a
default under the Note and shall entitle Seller to exercise the remedies
set forth in the Deed of Trust; the Deed of Trust shall further provide
that the Subject Property covered thereby secures payment not only
of the
Note but also of the Prior Indebtedness and that, if Purchaser defaults
in
the payment of either the Note or the Prior Indebtedness and, as
a result,
Seller forecloses upon and sells the Subject Property and the 80.713
acre
tract which cures payment of the Prior Indebtedness (the “Prior
Indebtedness Collateral”), then, at Seller’s election, Seller shall be
entitled to require any purchaser at such foreclosure sale to purchase
both the Subject Property and the Prior Indebtedness Collateral together,
so that after such foreclosure sale is completed the entire indebtedness
owed Seller by Purchaser is satisfied at the time the Subject Property
and
Prior Indebtedness Collateral are released from the liens securing
payment
of the Note and the Prior
Indebtedness;
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(viii)
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The
Deed of Trust shall name Xxxxx X. Xxxxx as the Trustee and the holder
of
the Deed of Trust shall retain the power to remove the Trustee and
name a
successor Trustee at any time and from time to time pursuant to the
Deed
of Trust.
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(ix)
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Both
the Note and the Deed of Trust shall otherwise be in form and substance
satisfactory to counsel for Seller and
Purchaser.
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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 to Tri-Lakes Title Co., Inc. (the
"Escrow Agent" or the "Title Company"), whose address is X.X. Xxx X, Xxxxxxx,
Xxxxxxxx 00000, a check payable to the order of the Title Company in
trust in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) ("Xxxxxxx
Money"). All Xxxxxxx Money shall be held and delivered in accordance
with the provisions hereof. Escrow Agent shall immediately present
for payment the check deposited by Purchaser and deposit same into an interest
bearing Trust Account. All interest accruing upon the Xxxxxxx Money
shall be held for the benefit of Purchaser so long as Purchaser is not in
default under the terms of this Contract. If Purchaser defaults under
the terms of this Contract, all interest accruing on the Xxxxxxx Money shall
accrue to the benefit of Seller.
In
the
event that this Contract is closed, then all Xxxxxxx Money shall be applied
in
partial satisfaction of the purchase price hereunder. In the event
that this Contract does not close, then the Xxxxxxx Money shall be disbursed
in
the manner provided for elsewhere herein. Notwithstanding the
foregoing or anything to the contrary contained elsewhere in this Contract,
it
is understood and agreed that Five Thousand Dollars ($5,000.00) of the Xxxxxxx
Money shall in all events be delivered to Seller as valuable consideration
for
the inspection period described in Article VI hereinbelow and the execution
of
this Contract by Seller.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
4
ARTICLE
IV
PRE-CLOSING
OBLIGATIONS OF PURCHASER
Within
twenty (20) days from the date
of execution of this Contract, Purchaser, at Purchaser’s sole cost and expense,
shall obtain and deliver to Seller copies of the following (collectively,
the
“Due
Diligence Items”):
a. An
updated or recertified Survey of the Subject Property which Survey shall
be
dated subsequent to the date of execution of this Contract and 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 exact number of square feet included within the Subject Property
and
within each building, if any, located on the Subject Property; (d) state
whether
the Subject Property (or any portion thereof) lies within a flood zone
or flood
prone area; (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, that the
Subject Property has access to public streets as indicated thereon, and
otherwise be in the form of Exhibit "B" attached hereto and made a part
hereof; and (f) otherwise be in form sufficient for the amendment of the
boundary exception by the Title Company. 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;
b. A
current commitment (the “Title
Commitment”)
for the issuance of an owner's policy of title insurance to the Purchaser
from
the Title Company, together with good and legible copies of all documents
constituting exceptions to Seller's title as reflected in the Title
Commitment.
ARTICLE
V
TITLE
INSPECTION PERIOD
Purchaser
shall have a period of sixty
(60) days following the date of execution of this Contract within which to
review and approve the information to be obtained by Purchaser pursuant to
subparagraphs (a) and (b) of Article IV (the "Title Review Period"). If the
information to be obtained pursuant to subparagraphs (a) and (b) of Article
IV
reflects or discloses any defect, exception or other matter affecting the
Subject Property ("Title Defects") that is unacceptable to Purchaser, then
prior
to the expiration of the Title Review Period Purchaser shall provide Seller
with
written notice of Purchaser's objections. Seller may, at his 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." Seller and Purchaser agree that the
currently existing utility easements in favor of Empire District Electric
Company and White River Valley Electric Cooperative shall be deemed to be
Permitted Exceptions.
ARTICLE
VI
INSPECTION
PERIOD
Purchaser,
at Purchaser's sole expense,
shall have the right to conduct a feasibility, environmental, engineering and
physical study of the Subject Property for a period of time commencing on the
date of execution of this Contract and expiring sixty (60) days thereafter
(the
"Inspection Period"). Purchaser and Purchaser's duly authorized
agents or representatives shall be permitted to enter upon the Subject Property
at all reasonable times during the Inspection Period in order to conduct
engineering studies, soil tests and any other inspections and/or tests that
Purchaser may deem necessary or advisable. Purchaser further agrees
to indemnify and hold Seller harmless from any claims or damages, including
reasonable attorneys' fees, resulting from Purchaser's inspection of the Subject
Property. In the event that the review and/or inspection conducted by
this paragraph shows any fact, matter or condition to exist with respect to
the
Subject Property that is unacceptable to Purchaser, in Purchaser's sole
discretion, or if for any reason Purchaser determines that purchase of the
Subject Property is not feasible, then Purchaser shall be entitled, as
Purchaser's sole remedy, to cancel this Contract by providing written notice
of
cancellation to Seller prior to the expiration of the Inspection
Period. If Purchaser shall provide written notice of cancellation
prior to the expiration of the Inspection Period, then this Contract shall
be
cancelled, all Xxxxxxx Money (less $5,000.00) shall be immediately returned
to
Purchaser by the Title Company, and thereafter neither Seller nor Purchaser
shall have any continuing obligations one unto the other; provided, however,
Purchaser shall restore the Property to its condition as existed upon the
execution date of this Contract. If the Contract remains in full
force and effect upon expiration of the Inspection Period, then the Xxxxxxx
Money shall thereafter be non-refundable to the Purchaser except in the event
of
a default by Seller at closing or in the event that any condition precedent
to
closing set forth in Article VIII of this Contract is not satisfied at the
time
of closing.
ARTICLE
VII
REPRESENTATIONS,
WARRANTIES, AND COVENANTS OF SELLER
Seller
represents and warrants to
Purchaser that Seller will have at closing good and indefeasible fee simple
title to the Subject Property free and clear of all liens, encumbrances,
covenants, restrictions, rights-of-way, easements, and any other matters
affecting title to the Subject Property except for the Permitted
Exceptions.
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 without promptly discharging the same prior to
closing.
Seller
hereby further represents and
warrants to Purchaser as follows:
a. There
are no
actions, suits, or proceedings pending or, to the best of Seller's knowledge,
threatened against Seller or otherwise affecting any portion of the Subject
Property, at law or in equity, or before or by any federal, state, municipal,
or
other governmental court, department, commission, board, bureau, agency,
or
instrumentality, domestic or foreign;
b. The
execution
by Seller of this Contract and the consummation by Seller of the sale
contemplated hereby have been duly authorized, and do not, and, at the closing
date, will not, result in a breach of any of the terms or provisions of, or
constitute a default under any indenture, agreement, instrument, or obligation
to which Seller is a party or by which the Subject Property or any portion
thereof is bound, and do not, and at the closing date will not, constitute
a
violation of any regulation affecting the Subject Property;
c. Seller
has
not received any notice of any violation of any ordinance, regulation, law,
or
statute of any governmental agency pertaining to the Subject Property or any
portion thereof;
d. That,
at
closing, there will be no unpaid bills, claims, or liens in connection with
any
construction or repair of the Subject Property except for ones which will be
paid in the ordinary course of business or which have been bonded around or
the
payment of which has otherwise been adequately provided for to the complete
satisfaction of Purchaser; and
e. To
the best
of Seller's knowledge, there has been no material release of any pollutant
or
hazardous substance of any kind onto or under the Subject Property that would
result in the prosecution of any claim, demand, suit, action or administrative
proceeding based on any environmental requirements of state, local or federal
law including, but not limited to, the Comprehensive Environmental Response
Compensation and Liability Act of 1980, U.S.C. § 9601 et seq.
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 and shall
survive 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
VIII
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.
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.
d. No
material
and substantial change shall have occurred with respect to the Subject Property
which would in any way affect the findings made in the inspection of the Subject
Property described in Article VI hereinabove.
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, the Xxxxxxx Money (less
$5,000.00) shall be returned to Purchaser, and thereafter neither Seller nor
Purchaser shall have any continuing obligations one unto the other.
ARTICLE
IX
CLOSING
The
closing hereunder shall take place
at the offices of the Title Company. The closing shall occur on or
before ninety (90) days from the date of expiration of the Inspection
Period. Purchaser shall notify Seller at least five (5) days in
advance of the exact time and date of closing. Seller and Purchaser
hereby agree that Purchaser shall have the right to obtain one ninety (90)
day
extension of the deadline for closing hereunder by delivering to Seller a
non-refundable extension fee in the amount of $100,000.00 ("Extension
Fee"). The Extension Fee shall be paid directly to Seller and shall
not be subject to any escrow. If Purchaser exercises this right, then
the deadline for closing hereunder shall be extended by ninety (90)
days. The $100,000.00 extension fee that must be paid by Purchaser in
order to extend the deadline for closing hereunder by ninety (90) days shall
be
non-refundable to Purchaser but, if this Contract closes, shall be applied
in
partial satisfaction of the purchase price payable hereunder. Seller
and Purchaser further agree that, if Purchaser has exercised Purchaser’s right
to obtain the first ninety (90) day extension of the deadline for the closing
hereunder, then Purchaser shall have the right to obtain a second ninety (90)
day extension of the deadline for the closing hereunder by delivering to Seller
a second non-refundable extension fee in the amount of $100,000.00 (the “Second
Extension Fee”). The Second Extension Fee shall be paid directly to
Seller and shall not be subject to any escrow. If Purchaser exercises
this right, then the deadline for the closing hereunder shall be extended by
an
additional ninety (90) days. The Second Extension Fee shall be
non-refundable to Purchaser but, if this Contract closes, shall be applied
in
partial satisfaction of the purchase price payable hereunder.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
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ARTICLE
X
SELLER'S
OBLIGATIONS AT CLOSING
At
the closing, Seller shall do the
following:
a. Deliver
to
Purchaser a special warranty 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 indefeasible
fee
simple 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. Furnish
to
Purchaser, at Seller's sole expense, a "marked-up" title commitment to be
followed by an Owner's Policy of Title Insurance (the "Title Policy") within
a
reasonable period of time and upon the Title Company's receipt of the original,
recorded documents evidencing the transaction issued by the Title Company on
the
standard form in use in the State of Missouri, insuring good and marketable
fee
simple title to the Subject Property in the Purchaser, in the amount of the
purchase price subject only to the Permitted Exceptions.
c. Deliver
such
evidence or other documents that may be reasonably required by the Title Company
evidencing the status and capacity of Seller and the authority of the person
or
persons who are executing the various documents on behalf of Seller in
connection with the sale of the Subject Property.
d. 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.
e. 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.
ARTICLE
XI
PURCHASER'S
OBLIGATIONS AT CLOSING
At
the closing, Purchaser shall deliver
to Seller the following:
(A) The
cash portion of the purchase price;
(B) The
Note duly executed by Purchaser; and
(C) The
Deed of Trust duly executed and acknowledged by Purchaser and in a formready
for
recording.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
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ARTICLE
XII
COSTS
AND ADJUSTMENTS
At
closing, the following items shall
be adjusted or prorated between Seller and Purchaser:
a. 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 prorata portion of such taxes. Seller's prorata
portion of such taxes shall be based upon assessments for the immediately
preceding calendar year taking into account the maximum allowable
discount.
b. Any
real estate transfer taxes or sales taxes that are payable in connectionwith
the
sale of the Subject Property shall be paid in full by Seller.
c. All
other closing costs including, but not limited to, recording and escrow fees
shall be divided equally between Seller and 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.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
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ARTICLE
XIII
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's 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
XIV
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. Notwithstanding the foregoing,
however, Purchaser agrees that Xxxxx Xxxxx shall have the right to retain
possession of the residence located on the Subject Property for a period of
one
(1) year following the date of closing; in addition, the tenant of Xxxxx Xxxxx
who is currently occupying a mobile home located on the Subject Property shall
be permitted ninety (90) days from the date of closing within which to vacate
the premises and remove the mobile home from the Subject Property.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
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ARTICLE
XV
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:
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Seller:
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Xxxxx
X. Xxxxx
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Attorney
for the Trustees of the Xxxxx Family Trust
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000
Xxxx Xxxxxxxx
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Xxxxxxx,
Xxxxxxxx 00000
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Purchaser:
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Silverleaf
Resorts, Inc.
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0000
Xxxxx Xxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Attn: Xxxxxx
X. Xxxx
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Telephone:
(000) 000-0000
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Fax:
(000) 000-0000
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With
a copy to:
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Xxxxxx
X. Xxxxxx
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000
Xxxx Xxxxxx, Xxxxx 0000
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Xxxxxx,
Xxxxx 00000
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Telephone: (000)
000-0000
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Fax: (000)
000-0000
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ARTICLE
XVI
REMEDIES
In
the event that Seller fails to
timely comply with all conditions, covenants and obligations of Seller
hereunder, such failure 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 (less $5,000.00) shall be returned
immediately to Purchaser 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) xxx Seller for specific
performance or for damages.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
14
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.
ARTICLE
XVII
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. In the event the Contract is assigned to a firm or
corporation, prior to Closing Purchaser shall provide Seller with proof of
the
legal existence of such assignee together with its mailing address and social
security number or tax identification number.
XVIII
INTERPRETATION
AND APPLICABLE LAW
This
Agreement shall be construed and
interpreted in accordance with the laws of the State of
Missouri. Jurisdiction and venue of any legal action shall be in
Taney County and such jurisdiction and venue are hereby accepted by Seller,
Purchaser and any assignee of Purchaser. 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.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
15
XIX
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
XX
AUTHORITY
Each
person executing this Contract
warrants and represents that he is fully authorized to do so.
ARTICLE
XXI
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
XXII
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.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
16
ARTICLE
XXIII
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
XXIV
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
XXV
ACCEPTANCE
Seller
shall have until 5:00 o'clock
p.m., October 20, 2006, 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, or legal holiday under the laws of the State of Missouri, 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
Missouri.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
17
ARTICLE
XXVI
REAL
ESTATE COMMISSION
In
the event this Contract closes, but
not otherwise, Seller agrees to pay a real estate commission in the amount
of
eight percent (8%) of the purchase price payable hereunder, such commission
to
be divided equally between Xxxxx Xxxxxxxxxxx of Xxxxx Xxxxx Realtors (“Purchaser
Broker”) and Xxxxxx X. Xxxxx of Re-Max Associated Brokers, Inc. (“Seller
Broker”) and to be paid in the manner set forth in the separate agreement by and
between Seller, Purchaser Broker and Seller Broker. Seller represents
and warrants to Purchaser that Seller has not contacted or entered into any
agreement with any other real estate broker, agent, or finder in connection
with
this transaction (other than Seller Broker), and that Seller has not taken
any
action which would result in any other real estate broker's, finder's, or other
fees or commissions being due and payable to any 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 other real estate broker, agent, finder, or any other party
in connection with this transaction (other than Purchaser Broker), and that
Purchaser has not taken any action which would result in any other real estate
broker's, finder's, or other fees or commissions being due or payable to any
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 XXVI shall
survive the closing.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
18
ARTICLE
XXVII
AGENCY
DISCLOSURE
Seller
Broker is acting as agent for
the Seller and owes no fiduciary duty or obligation to any other party to this
Contract and the Purchaser Broker represents Purchaser and owes no fiduciary
duty or obligation to any other party to this Contract.
EXECUTED
on this the
16th day
of October, 2006.
|
SELLER:
|
||
|
/S/
XXXXXX X. XXXXX
|
||
|
XXXXXX
X. XXXXX, as
Trustee of the Xxxxx Family Trust
dated June 3, 1992
|
||
|
|
||
|
/S/
XXXXXX X. XXXXX
|
||
|
XXXXXX
X. XXXXX, as Trustee of the Xxxxx Family Trust dated June 3, 1992
and in
his individual capacity
|
||
|
/S/
P. XXXXXXX XXXXX
|
||
|
P.
XXXXXXX XXXXX, in her individual capacity
|
||
|
/S/
XXXXXXX XXXXXXXX XXXXX
|
||
|
XXXXXXX
XXXXXXXX XXXXX, as Trustee of the Xxxxx Family Trust dated June 3,
1992,
and in his individual capacity
|
||
|
/S/
XXXXX XXXXX XXXXX
|
||
|
XXXXX
XXXXX XXXXX, as Trustee of the Xxxxx Family Trust dated June 3, 1992
and
in his individual capacity
|
EXECUTED
on this the 30th day of October, 2006.
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
19
|
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:
| TITLE COMPANY: | ||
| TRI-LAKES TITLE CO., INC. | ||
|
By:
|
/S/
XXXXXX XXXXXXX
|
|
|
Name:
|
Xxxxxx
Xxxxxxx
|
|
|
Its:
|
Closing
Receptionist
|
|
List
of
Exhibits to Agreement not filed herewith:
Exhibit
A--Legal Description
CONTRACT
OF SALE - XXXXX XX AND SILVERLEAF RESORTS, INC. -- Page
20
