REAL ESTATE CONTRACT
EXHIBIT
10.38
| THIS CONTRACT IS MADE in triplicate this |
15th
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day
of
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August,
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2006,
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| by and between |
Xxxxxx
Travel Centers, Inc.
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A
Nevada Corporation
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| whose address is |
000
Xxxxxxxxx XX, Xxxxxxxxxxx, XX 00000
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| hereinafter called the Seller, and |
Teak,
LLC, a New Mexico Limited Liability Company
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| whose address is |
XX
Xxx 000, Xxxxxxx Xxxx, XX 00000
|
hereinafter
called the Purchaser. Whenever a masculine pronoun is used, it shall also
be
considered as referring to the female gender and plural pronouns, whichever
is
proper.
1.
SALE: The Seller, in consideration of the promises and agreements herein
made by
the Purchaser, agrees to sell and convey to the Purchaser the following
described real estate, hereinafter called the Property, in the County of
Xxxx
Xxx and State of New Mexico:
Xxx
0
Xxxxxx Xxxxxx, xx xxx Xxxxxx xx Xxxx Xxx, Xxx Xxxxxx, as the same is shown
and
designated on Plat No. 3587 thereof filed for record in the Office of the County
Clerk of said county on March 26, 2002, and recorded in Book 20 page 41, Plat
Records.
Subject
to reservations, restrictions and easements of record.
Subject
to all the terms and conditions for the Easement in perpetuity for Outdoor
Advertising signs as set out in the warranty deed from the grantor to the
grantee herein, of which a copy is attached hereto and made a part
hereof.
The
Seller agrees, upon completion of all terms and conditions of this contract
by
the Purchaser, that the Purchaser shall then receive the Warranty Deed and
related documents placed in escrow with this Contract.
2.
PRICE AND PAYMENT: The Purchaser agrees to buy the above-described Property
and
to pay Seller therefore the total sum of Sixty-seven
thousand five hundred and no/100 Dollars
($
67,500.00
),
payable
as follows: Thirteen
thousand two hundred fifty and
no/100 Dollars
($
13,250.00
),
cash
down payment, the receipt of which is hereby acknowledged, and the balance
of Fifty-four
thousand two hundred fifty and
no/100 dollars
($ 54,250.00
),
payable as follows:
the
balance of $54,250.00 is due and payable in 20 equal quarterly installments
in
the amount of $3,398.33 each, including interest, at the rate of 9.0% per annum.
Commencing on the 15th day of November, 2006 and continuing on the 15th day
of
each February, May, August and November of each and every year thereafter until
all principal and accrued interest is paid in full.
The
payments as above provided shall be paid to the escrow agent and continue until
the entire unpaid balance of the purchase price (exclusive of any prior lien
or
obligation being assumed) plus any accrued interest due to the seller is fully
paid. Said unpaid balance shall bear interest at the rate
of Nine
point zero per
centum ( 9.0
%)
per
annum from the effective date August
15, 2006
APPLICATION
OF PAYMENTS: Check
and
initial only one of the following two paragraphs.
| (a) |
Initials
____________
____________
____________
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Payments,
excepting prepayments, shall be
applied to regularly scheduled installments in the order in which
the same
were due and shall be credited as though the payments were made
on their
respective due dates.
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| (b) |
XX
Initials
/i/
TJ
/i/
MLB
____________
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Payments
shall be applied as of the date of
receipt by Escrow Agent first to accrued interest then to principal
balance of this Contract.Payments shall be applied as of the
date of
receipt by Escrow Agent first to accrued interest then to principal
balance of this Contract.
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All
payments shall be assumed to be regular payments, and not prepayments, unless
otherwise specified by Purchaser in writing at the time of delivering such
payments to Escrow Agent. Unless otherwise provided, Purchaser may prepay the
unpaid balance in whole or in part at any time. Any prepayment shall be credited
first to accrued interest, then to the principal balance of this Contract
exclusive of assumed liens or obligations, then to assumed liens or obligations
as described in this paragraph. Notwithstanding any prepayments, Purchaser
shall
make the next regularly scheduled payments.
Should
Purchaser fail to make any of the payments or perform any other obligations
required hereunder, including the payment of any assumed obligation, and if
Seller’s attorney makes written demand therefore pursuant to Paragraph 5 below,
the Purchaser shall pay within the time allowed the additional sum of
$ 150.00
,
unless
otherwise stated, for Seller’s attorney’s fees.
The
following lien(s) or obligation(s) is currently outstanding on the property:
| Type of Lien or Obligation Holder | Loan Number | Recording Data: Book & Page | ||
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None
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IF
ANY LIEN (S) OR OBLIGATION(S) IS/ARE CURRENTLY OUTSTANDING ON THE PROPERTY,
CHECK AND INITIAL ONLY ONE OF THE FOLLOWING THREE PARAGRAPHS. ONLY THAT
PARAGRAPH SHALL APPLY.
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(a)
Initials
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____________
____________
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Purchaser
assumes and agrees to pay the
above-mentioned prior lien(s) or obligation(s) in accordance
with
its/their terms. Purchaser shall make the installment payments
on the
prior lien(s) or obligation(s), together with installment payments
on this
Contract, to the Escrow Agent named below, who will remit the
payments to
the person or company to whom they are payable. Purchaser shall
advise the
Escrow Agent of any change in the amount of the payment due on
any assumed
obligation(s). Failure to make such payments at the time required
shall be
a default under this Contract. At such time as the unpaid balance
of the
purchase price due the seller is fully paid, this Escrow shall
terminate
and the purchaser shall thereafter make the installment payments
on said
prior lien(s) or obligation(s) directly to the person(s) or company(ies)
to whom they are payable.
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(b)
Initials
____________
____________
____________
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Purchaser
assumes and agrees to pay the
above-mentioned prior lien(s) or obligation(s) in accordance
Initials with
its/their terms. Purchaser shall make the installment payments
on the
prior lien(s) or obligation(s) directly to the person or company
to whom
payable. Failure to make such payments at the time required shall
be a
default under this Contract.
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(c)
Initials
____________
____________
____________
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Purchaser
does not assume or agree to pay the
above described lien(s) or obligation(s). All payments due Initials
on
such lien(s) or obligation(s) shall be remitted by the Escrow
Agent to the
person or company to whom they are payable out of the payments
made by
Purchaser. If the payments due from Purchaser are insufficient
to satisfy
the amounts due to be made on the above-described lien(s) or
obligation(s), Seller shall pay Escrow Agent such additional
funds as are
necessary to keep such lien(s) or obligation(s)
current.
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Should
Purchaser fail to pay any such installment payments prior to the same becoming
delinquent, Seller may pay the same for the protection of the Property and
his
interest therein. Payment by Seller shall not be deemed a waiver of Purchaser’s
default, and the amount so paid by Seller shall be immediately due and payable
to Seller and shall bear interest until paid at the same rate as provided
in
Paragraph 2 above.
3.
PURCHASER
TO PAY INSURANCE, TAXES AND PAVING LIENS, AND SELLER’S
RIGHTS:
(a)
Insurance.
The
Purchaser agrees to keep the insurable improvements upon the Property insured
against the hazards covered by fire and extended coverage insurance, with an
insurance company satisfactory to Seller in the sum of not less than
$____________
for the
benefit of Purchaser and Seller as their interests may appear, and furnish
a
copy of the insurance policy or certificate of the insurance policy to Seller
annually prior to expiration of existing insurance.
(b)
Taxes.
Unless
otherwise stated herein, the property taxes for the current year have been
divided and prorated between Seller and Purchaser as of
the
date of this Contract, and the Purchaser is responsible for and will pay the
taxes and assessments of every kind hereafter billed. Purchaser
will have the Property assessed for taxation in Purchaser’s name. Upon request
by Seller, Purchaser will send copies of the paid tax receipts each year to
Seller.
(c)
Paving
and Other Improvement Liens and Standby Charges.
Unless
otherwise stated herein, the Purchaser assumes any paving and/or other
improvement lien and/or standby charges now assessed against the Property and
agrees to pay all installments of principal and interest thereon that hereafter
become due.
(d)
Seller’s
Rights.
Should
the Purchaser fail to pay insurance premiums, taxes and assessments, paving
liens, improvement liens or standby charges, or other such matters prior to
the
same becoming delinquent, Seller may pay the same (but is not obligated to
do
so) for protection of the Property and his interest therein, Payment of such
charges shall not be deemed a waiver of any default of
Purchaser for failure to pay such charges, and such amounts as have been so
paid
shall be immediately due and payable to Seller, and shall bear interest until
paid at the same rate as provided in Paragraph 2 above.
4.
PURCHASER’S
RIGHT, SELLER’S RETENTION OF INTEREST:
Purchaser
shall be entitled to take possession of the Property and retain possession
unless and until Purchaser’s interests under this Contract shall be terminated
by Seller as provided in Paragraph 5 below. Legal title to the Property shall
remain in Seller’s name until this contract has been fully performed upon the
part of Purchaser and the Warranty Deed delivered as specified.
5.
SELLER’S
RIGHTS IF PURCHASER DEFAULTS:
(a)
Default
Notice.
Time is
of the essence in this contract, meaning that the parties shall perform their
respective obligations within the times stated. If Purchaser fails to make
any
of the payments required in Paragraph 2, herein, at the times specified, or
fails or refuses to maintain insurance or to pay taxes, assessments or other
charges against the Property, or fails or refuses to repay any sums advanced
by
the Seller under the provisions of Paragraph 3 above, the Seller may make
written demand upon the Purchaser, with such notice to specify the default
and
the curative action required, at his address as follows:
| XX Xxx 000 |
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| Xxxxxxx Xxxx, XX 00000 |
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or
at
such other address that Purchaser may designate by a notarized statement
delivered to the Escrow Agent, which change of address will be effective on
the
seventh (7th) calendar day after receipt by the Escrow Agent.
(b)
Manner
of Giving Default Notice. Notice
in
writing shall be given by certified mail, return receipt requested, addressed
to
the Purchaser at the effective address for Purchaser as provided in Paragraph
5(a), with a copy to Escrow Agent. Purchaser expressly acknowledges that notice
to him by mail, in the manner above specified, is sufficient for all purposes,
regardless of whether he actually receives such notice.
2
(c)
Purchaser’s
Failure to Cure Default Results in Termination of Contract or Acceleration
of
Entire Unpaid Balance.
If
the
Purchaser fails or neglects to cure any default within
Thirty (30)
days
after the date Seller’s default notice is mailed, then the Seller may, at his
option either declare the whole amount remaining unpaid to be then due and
pro-ceed to enforce payment of the entire remaining unpaid balance, plus any
accrued interest, together with reasonable attorney’s fees, or he may terminate
Purchaser’s rights to the Property and retain all sums paid as liquidated
damages to that date for the use of the property, and all rights of Purchaser
in
the Property shall thereupon end. If the final day for curing the default shall
fall on a Saturday, Sunday, or non-busi-ness day of the Escrow Agent, then
the
period for curing the default shall extend to the close of business on the
next
regular business day of the Escrow Agent.
Acceptance
by Escrow Agent of any payment tendered shall not be deemed a waiver by Seller,
or extension of the time for cure, of any other default under this Contract.
In
the event of termination, Purchaser hereby waives any and all rights and claims
for reimbursement for improvements he may have made upon the
Property.
(d)
Affidavit
of Uncured Default and Election of Termination.
A
recordable affidavit made by Seller, his agent, or Escrow Agent, identifying
the
parties, stating the legal description of the Property or the recording data
of
this Contract and stating the date that notice was duly given as provided above,
that the specified default has not been cured within the time allowed and that
the Seller has elected to terminate, and delivered to the Escrow Agent shall
be
conclusive proof for the Escrow Agent and any subsequent Purchaser or
encumbrancer for value of such uncured default and election of
termination.
(e)
Purchaser
Becomes Tenant. Upon
termination, Purchaser has no continuing right to possession. If Purchaser
remains in possession of the Property after this Contract has been terminated
as
above provided, Purchaser shall then become a tenant at will, for a rental
amount equivalent to the installment payment theretofore required as monthly
payments under this Contract, with the first such rental payment due
immediately, in advance, and such tenancy being subject to termination by either
party upon thirty (30) days separate prior written notice. Seller’s acceptance
of such rental payment(s) shall not be deemed as any waiver of his rights,
nor
shall it constitute any manner of estoppel.
(f)
Legal
Right to Evict Purchaser. Forcible
entry and detainer proceedings, in addition to any other appropriate legal
remedies, may be utilized by the Seller if necessary to obtain possession of
the
Property following termination of this Contract and termination of Purchaser’s
continued tenancy thereafter. If such proceedings are filed, Purchaser shall
be
liable for Seller’s reasonable attorney’s fees plus the legal costs of such
action.
6.
TITLE
INSURANCE OR ABSTRACT:
Unless
otherwise provided herein, Seller is delivering a Contract Purchaser’s Title
Insurance Policy to Purchaser or Abstract of Title to Escrow Agent at the time
this Contract is made, showing merchantable title to the Property as of the
date
of this Contract, subject to the matters referred to in this Contract, and
Seller is not obligated to provide any other or further evidence of
title.
7.
PURCHASER’S
RIGHT TO SELL:
(A)
First Provision:
Purchaser
shall be entitled to sell, assign, convey or encumber his entire interest in
this Contract (but not a portion thereof) and the Property to any person or
entity, hereinafter called Assignee, and may retain a security interest therein,
without obtaining the consent or approval of the Seller.
The Purchaser shall not, however, be released from his obligations hereunder
by
any such sale, assignment, conveyance or encumbrance. In the event Purchaser
does sell, assign, convey or encumber said interest, then Purchaser, his
Assignee, or any subsequent Assignee shall deliver a copy of such written sale,
assignment, conveyance or encumbrance document to Escrow Agent.
Such
sale, assignment, conveyance or encumbrance document shall specify the address
of the Assignee and upon receipt of such document by the Escrow Agent, Seller
shall only be required to send notice of default to the most recent Assignee
who
has given notice of such sale or assignment and his address to the Escrow Agent
as provided herein. If such document is not received by the Escrow Agent, any
notice of default need be sent only to the last person or entity and address
for
which written notice has been provided to the Escrow Agent as provided
herein.
(B)
Special Alternative Provision:
CAUTION:
THE FOLLOWING PROVISION SEVERELY RESTRICTS THE RIGHT OF PURCHASER TO SELL,
ASSIGN, CONVEY OR ENCUMBER THIS CONTRACT AND THE PROPERTY. If the parties wish
to invoke this provision, they should check the box as indicated and each
initial as provided. If the Special Alternative Provision is elected, the First
Provision does not apply.
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XX
Initials
/i/
TJ
/i/
MLB
____________
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Purchaser
shall not be entitled, directly or
indirectly, to sell, assign, convey or encumber all or any
portion of the
Purchaser’s interest in this Contract or in the Property without first
obtaining the written consent of Seller, and Seller shall not
be under any
obligation of any kind to give such consent. In the event that
Purchaser
shall, directly or indirectly, sell, assign, convey or encumber
or
contract to sell, assign, convey or encumber, directly or indirectly,
all
or any portion of the Purchaser’s interest this Contract or in the
Property without the consent of Seller, it shall be an event
of default
subject to the rights of Seller in Paragraph 5,
herein.
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Caution:
If the Property is subject to any prior mortgage(s), Deed(s) of Trust or Real
Estate Contract(s), then the provisions thereof should be examined carefully
for
any conflict with the above clause.
8.
BINDING
EFFECT:
This
Contract shall extend to and be obligatory upon the heirs, executors,
administrators, personal representatives, successors and assigns of the parties
to this Contract.
9.
APPOINTMENT
OF AND INSTRUCTIONS TO ESCROW AGENT:
The
parties hereby appoint as Escrow Agent:
| Mountain State Escrow, Inc. |
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| XX Xxx 00000 |
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| Xxx Xxxxxx, XX 00000 |
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The
following papers are herewith placed in escrow:
| 1. Signed copy of this Contract. | |
| 2. Original Warranty Deed signed by Seller. | |
| 3. Original Special Warranty Deed signed by Purchaser. |
Add
following information, if applicable:
| Name and address of mortgagee: | |
| n/a | |
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| Loan No. | |
| Name and address of Escrow Agent under any other contract on the Property: | |
| n/a | |
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3
(a)
The fee(s) of the Escrow Agent shall be paid as
follows: all
fees shall be paid by the
purchaser If
such
fee(s) is/are paid wholly or in part by Purchaser, such amount shall be in
addition to the amounts due from Purchaser as provided in Paragraph 2, herein.
The Escrow Agent is instructed to accept all monies paid in accordance with
this
Contract and remit the money received (less applicable escrow fees) as
follows: all proceeds
are to be mailed to seller
(b)
All payments shall be deemed provisionally accepted when tendered, subject
to
determination by the Escrow Agent of the correct amount and its
timeliness.
(c)
Upon full payment of all amounts due and owing to the Seller under this Contract
by the Purchaser, the Escrow Agent is directed to release and deliver the escrow
documents to the Purchaser.
(d)
If the Seller or his agent delivers an Affidavit of Uncured Default and Election
of Termination (as described in Paragraph 5 above) to the Escrow Agent, then
the
Escrow Agent shall release and deliver the escrow documents to the Seller.
The
Escrow Agent shall be entitled to rely on such Affidavit as conclusive proof
of
termination.
(e)
The Escrow Agent is instructed that after each and every written demand is
mailed to the Purchaser, pursuant to Paragraph 5 above, and a copy thereof
is
furnished to the Escrow Agent, not to accept less than the full amount of the
sum stated as due in the written demand, plus the additional
$__________,
unless
otherwise stated, for Seller’s attorney’s
fees.
(f)
The Escrow Agent is entitled to charge its standard fees current as of the
date
the service is rendered, but all changes shall become effective only after
sixty
(60) days written notice to the party or parties paying the fee of the Escrow
Agent.
(g)
Seller and Purchaser will each indemnify and save harmless the Escrow Agent
against all costs, damages, attorney’s fees, expenses and liabilities, which it
may incur or sustain in connection with this Contract, including any
interpleader or declaratory judgment action brought by Escrow Agent, but
excepting failure of the Escrow Agent to comply with this Paragraph
9.
(h)
The Escrow Agent shall have the right to resign as Escrow Agent under this
Contract by giving the parties sixty (60) days written notice of intent to
resign. The parties shall thereupon mutually select a successor Escrow Agent
and
give written notice to the Escrow Agent of such selection. If the parties fail,
for any reason, to mutually select a successor Escrow Agent and give Escrow
Agent written notice of such selection within sixty (60) days after mailing
by
the Escrow Agent of notice of intent to resign as aforesaid, then the Escrow
Agent may select the successor Escrow Agent. Delivery by the Escrow Agent to
the
successor Escrow Agent of all documents and funds, after deducting there from
its charges and expenses, shall relieve the Escrow Agent of all liability and
responsibility for acts occurring after the date of the assignment in connection
with this Contract.
10.
SEVERABILITY
CLAUSE: The
invalidity or unenforceability of any provision of this Contract shall not
affect the validity or enforceability of the remainder of this
Contract.
The
parties have signed and acknowledged this Contract effective as of the date
stated at the beginning of this Contract.
CAUTION:
YOU SHOULD READ THIS ENTIRE CONTRACT BEFORE SIGNING. IF YOU DO NOT UNDERSTAND
THIS CONTRACT, YOU SHOULD CONSULT YOUR ATTORNEY.
| SELLER | PURCHASER | ||
| Xxxxxx Travel Centers, Inc. | Teak, LLC | ||
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| by: /s/ Xxxxxxx X. Xxxxxx | by: /s/ Teak Xxxxxxx | ||
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| Teak Xxxxxxx, Managing Member | |||
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ACKNOWLEDGMENT
FOR NATURAL PERSONS
STATE
OF
NEW MEXICO
COUNTY
OF Xxxx
Xxx } ss.
| This instrument was acknowledged before me on |
August
15,
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2006
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| by | Teak Xxxxxxx, Managing Member of Teak, LLC | |
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| My commission expires: | /s/ Xxxxx X. Xxxxx | ||
| 7-20-10 |
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Notary Public | ||
STATE
OF
NEW MEXICO
COUNTY
OF
} ss.
| This instrument was acknowledged before me on |
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| by | ||
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| My commission expires: | |||
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Notary Public | ||
ACKNOWLEDGEMENT
FOR CORPORATION
STATE
OF
NEW MEXICO
COUNTY
OF Bernalillo } ss.
| This instrument was acknowledged before me on |
August
17,
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2006
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| by | Xxxxxxx X. Xxxxxx, President of Xxxxxx Travel Centers, Inc. | |
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| a | Nevada Corporation | |
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| My commission expires: | /s/ Xxxxxxx X. Xxxxxxx | ||
| 12-16-08 |
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|
Notary Public | ||
RECEIPT
AND ACCEPTANCE BY ESCROW
AGENT
The
Escrow Agent hereby acknowledges receipt of the following documents in
regard to
the above-captioned Escrow Contract:
| _____ | (a) | Escrow Set-Up fee in amount of $__________ | _____ | (d) | Special Warranty Deed | |||||
| _____ | (b) | Signed copy of this Contract | _____ | (e) | __________________________ | |||||
| _____ | (c) | Warranty Deed | _____ | (f) | __________________________ | |||||
| _____ | (g) | __________________________ | ||||||||
| ____________________________ | ||||
| ESCROW AGENT | ||||
| By: | Date: | _______________________, 20____ | ||
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