CONTRACT OF SALE
This
Contract is entered into by and between XXXXXX
X. XXXXX, TRUSTEE OF THE XXXXX FAMILY TRUST DATED JUNE 3,
1992
("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
80.713 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 Nine Hundred Fifty Thousand and No/100 Dollars ($950,000.00).
The
purchase price shall be payable in the following manner:
A.
$230,000.00
of the total purchase price shall be payable in cash at the closing,
less any
xxxxxxx money deposits retained by Seller;
B.
The
balance of the purchase price shall be paid by Purchaser’s execution
and delivery
at the closing of a promissory note (the “Note”) payable to Seller in
the original
principal amount of $720,000.00. The Note shall provide and be secured
as follows:
| (i) |
The
Note shall bear interest from date of execution at the rate of
six
(6%) percent
per annum;
|
|
(ii)
|
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 be in the amount of $180,000.00 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;
|
|
(iii)
|
The
Note shall provide that it 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;
|
|
(iv)
|
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;
|
|
(v)
|
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.
|
|
(vi)
|
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;
|
|
(vii)
|
The
Deed of Trust shall provide that Purchaser may from time to time
obtain
partial releases of the Subject Property from the lien created therein
upon payment of a partial release price as
follows:
|
(a)
The
West
½ of the SW ¼ of the SW ¼ of Section 2 and the West ½ of the NW ¼ of the NW ¼ of
Section 11 lying North of the Hollister-Kirbyville Road shall be released upon
payment of the first annual principal and interest payment set out in said
Note;
and
(b)
The
East
½ of the SW ¼ of the SW ¼ of Section 2 and the East ½ of the NW ¼ of the NW ¼ of
Section 11 lying North of the Hollister-Kirbyville Road shall be released upon
payment of the second annual principal and interest payment set out in said
Note; and
(c)
The
West
½ of the SE ¼ of the SW ¼ of Section 2 shall be released upon payment of the
third annual principal and interest payment as set out in said
Note.
|
The
partial releases shall be made by Seller in the order and sequence
as set
out in clauses (a), (b) and (c) above with the remainder of the Subject
Property being released when the Note is paid in
full.
|
|
(viii)
|
The
Deed of Trust shall name Xxxx Xxxxxxxx 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.
|
|
(ix)
|
Both
the Note and the Deed of Trust shall otherwise be in form and substance
satisfactory to counsel for Seller and Purchaser.
|
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.
ARTICLE
IV
PRE-CLOSING
OBLIGATIONS OF SELLER
Within
ten (10) days after the Purchaser’s deposit of its Xxxxxxx Money hereunder,
Seller shall deliver, or cause to be delivered, to Purchaser a copy of the
survey dated October 31, 2000, prepared by Xxxxxx Survey Company of Branson,
Missouri (“the “Survey”). 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." The
provisions hereof to the contrary notwithstanding, that certain power line
easement in favor of Empire District Electric Company recorded in Book 248,
Page 1681, Taney County Deed Records, and that certain Sanitary Sewer Easement
in favor of Taney County Regional Sewer District recorded in Book 343, Page(s)
3252-3253, Taney County Deed Records are hereby 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.
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 sixty (60) 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 sixty (60) days. The $100,000.00 extension fee that must be paid
by
Purchaser in order to extend the deadline for closing hereunder by sixty (60)
days shall be non-refundable to Purchaser but, if this Contract closes, shall
be
applied in partial satisfaction of the purchase price payable
hereunder.
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
form ready
for
recording.
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 connection with
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.
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.
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:
| Seller: | Xxxx Xxxxxxxx | |
|
Attorney
for the Trustee of the Xxxxx Family Trust
000
Xxxx Xxxxxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
||
| Purchaser: |
Silverleaf
Resorts, Inc.
0000
Xxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Xxxxxx X. Xxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
|
| With a copy to: |
Xxxxxx
X. Xxxxxx
000
Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
|
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.
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.
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.
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., June 3, 2005, 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.
ARTICLE
XXVI
REAL
ESTATE COMMISSION
In
the
event this Contract closes, but not otherwise, Purchaser agrees to pay a real
estate commission to Xxxxx Xxxxxxxxxxx of Xxxxx Xxxxx Realtors (“Purchaser
Broker”), such commission to be in the amount of five (5%) percent of the
purchase price payable hereunder, and Seller agrees to pay a real estate
commission to Xxxxxx X. Xxxxx of Re-Max Associated Brokers,
Inc. (“Seller Broker”), such commission to be in the amount of four percent (4%)
of the purchase price payable hereunder. 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.
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 31st day of May, 2005.
SELLER:
/S/
XXXXXX X.
XXXXX
XXXXXX
X.
XXXXX
Trustee
of the Xxxxx Family Trust dated June 3, 1992
/S/
XXXXXXX X.
XXXXX
/S/
XXX
XXXXX
/S/
XXXXXX X.
XXXXX
EXECUTED
on this the 24TH
day of
May, 2005.
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:
Name:
Its:
Exhibits
to Agreement not filed herewith:
Exhibit
A: Property Description
Exhibit
B: Surveyor's Certification
