CONTRACT OF SALE
This
Contract is entered into by and between XXX XXXX, TRUSTEE ("Seller"), and
SILVERLEAF RESORTS, INC., a Texas corporation ("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 those certain tracts or parcels
of land situated in Davenport, Polk County, Florida, said tracts containing
approximately 30.31 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 Four Million and No/100 Dollars ($4,000,000.00). The purchase
price shall be payable in the following manner.
A.
$1,000,000.00
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 $3,000,000.00. The Note shall provide and be secured
as follows:
| (i) |
The
Note shall bear interest 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 three (3) years in twelve
successive quarterly installments, the first of such installments
to be
due and payable on the first (1st)
day of the fourth (4th)
month following the month in which the Note is executed, and a
like
installment to be due and payable on the first (1st)
day of every third (3rd) month thereafter until the Note is paid
in full;
the first eleven (11) of such installments shall each be in the
amount of
$250,000.00 of principal plus all then accrued but unpaid interest
on the
outstanding principal balance of the Note; the twelve (12th)
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 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;
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(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 Mortgage (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 Mortgage, 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 Mortgage;
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(v)
|
The
Note shall be secured by a first Mortgage (the “Mortgage”) to be executed
in Seller’s favor at the closing; both the Note and the Mortgage 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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(vi)
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Both
the Note and the Mortgage 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 First American Title Insurance Company (the
"Escrow Agent" or the "Title Company"), whose address is 0000 Xxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, to the attention of Xxxxxxxx X. Xxxxxxxxx,
Vice President, a check payable to the order of the Agent 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 or fails to acquire the
Property through no fault of Seller, all interest accruing on the Xxxxxxx Money
shall accrue to the benefit of Seller.
If
Purchaser does not terminate this Contract during the Inspection Period (as
defined in Article VI hereinbelow) then, within two (2) business days after
the
expiration of the Inspection Period, the Title Company shall immediately
disburse the entire $50,000.00 xxxxxxx money deposit to Seller; upon such
disbursement the $50,000.00 xxxxxxx money deposit shall be non-refundable to
the
Purchaser except in the event of a default by Seller hereunder, but, if this
Contract closes, then the entire $50,000.00 xxxxxxx money deposit shall be
applied in partial satisfaction of the purchase price payable at
closing.
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
One Hundred Dollars ($100.00) 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
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
as-built 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;
It
is
understood and agreed that there are currently two (2) outdoor billboard signs
located on the Subject Property, one pursuant to a Renewal Lease between Seller
and Xxxxx Company dated September 3, 2002, and a second pursuant to a lease
between Seller and Whiteo Outdoor Advertising (the rights of Whiteo Outdoor
Advertising having been subsequently signed to Xxxxx Company) dated August
28,
1998. In addition, there is an outstanding notice of violation and notice of
hearing for billboards located on the Subject Property issued by Polk County,
Florida. Upon execution of this Contract, Seller shall promptly furnish copies
of the foregoing leases and notices to Purchaser. At closing, Seller shall
deliver an assignment and assumption agreement to Purchaser assigning all of
Seller’s interest in and to the foregoing leases, and Purchaser shall assume all
rights and obligations of the lessor under said leases from and after the date
of closing.
ARTICLE
V
TITLE
INSPECTION PERIOD
Purchaser
shall have a period of thirty (30) 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 its 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 thirty
(30)
days from the date of Purchaser's written notice of objections (the "Cure
Period") in which to accomplish the cure. In the event Seller either elects
not
to cure or remove the objections or is unable to accomplish the cure prior
to
the expiration of the Cure Period, then Seller shall so notify Purchaser in
writing specifying which objections Seller does not intend to cure, and then
Purchaser shall be entitled, as Purchaser's sole and exclusive remedies, either
to terminate this Agreement by providing written notice of termination to Seller
within ten (10) days from the date on which Purchaser receives Seller's no-cure
notice or waive the objections and close this transaction as otherwise
contemplated herein. If Purchaser shall fail to notify Seller in writing of
any
objections to the state of Seller's title to the Subject Property as shown
by
the Survey and Title Commitment, then Purchaser shall be deemed to have no
objections to the state of Seller's title to the Subject Property as shown
by
the Survey and Title Commitment, and any exceptions to Seller's title which
have
not been objected to by Purchaser and which are shown on the Survey or described
in the Title Commitment shall be considered to be "Permitted Exceptions." It
is
understood and agreed that the Subject Property will be conveyed to Purchaser
subject to the billboard sign leases and the notice of violation and notice
of
hearing for billboards which currently affect the Subject Property and that
such
leases and notices shall 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 shall furnish
Seller with copies of any and all inspection reports obtained by Purchaser
free
of charge. 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, and thereafter neither Seller nor Purchaser shall have any continuing
obligations one unto the other. Upon any such cancellation of this Contract
by
Purchaser, then the Purchaser shall provide the Title Company with verification
that all inspection costs and expenses have been paid by Purchaser, and
thereupon the Title Company shall return all xxxxxxx money (less $100.00) to
Purchaser.
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.
Except
for the notice of violation and notice of hearing for billboards described
in
Article IV hereinabove, 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.
Except
for the notice of violation and notice of hearing for billboards described
in
Article IV hereinabove, 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,
and thereafter neither Seller nor Purchaser shall have any continuing
obligations one unto the other. Upon any such cancellation of this Contract
by
Purchaser, then the Purchaser shall provide the Title Company with verification
that all inspection costs and expenses have been paid by Purchaser, and
thereupon the Title Company shall return all xxxxxxx money (less $100.00) to
Purchaser.
ARTICLE
IX
CLOSING
The
closing hereunder shall take place at the offices of the Title Company. The
closing shall occur on or before thirty (30) 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 closing
hereunder, then Purchaser shall have the right to obtain a second ninety (90)
day extension of the deadline for closing hereunder by delivering to Seller
a
second non-refundable extension fee in the amount of $100,000.00 ("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 closing hereunder shall be extended by an additional ninety (90)
days. The Second Extension Fee shall be non-refundable to Purchaser and, if
this
Contract closes, shall not 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.
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.
c.
Deliver
a
non-withholding statement that will satisfy the requirements of Section 1445
of
the Internal Revenue Code so that Purchaser is not required to withhold any
portion of the purchase price for payment to the Internal Revenue
Service.
d.
Deliver
to Purchaser any other documents or items necessary or convenient in the
reasonable judgment of Purchaser to carry out the intent of the parties under
this Contract.
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;
(C)
The
Mortgage duly executed and acknowledged by Purchaser and in a form ready
for
recording;
(D)
Purchaser
shall require the Title Company to furnish to Purchaser 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 Florida, 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. All
costs
related to title insurance including the costs of title searches, title
examinations, title commitments, title binders, and title policy premiums shall
be the responsibility of Purchaser; and
(E)
A
Mortgagee Policy of Title Insurance issued by the Title Company on the standard
form in use in the State of Florida insuring Seller that the lien created by
the
Mortgage is a good and valid first lien on the Subject Property in favor of
Seller.
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.
Purchaser
will pay taxes and recording fees on notes, mortgages and financing statements
and recording fees for the deed. Seller will pay taxes on the deed and recording
fees for documents needed to cure title defects. Except as specifically set
forth above, any other charges or fees shall be paid as normal and customary
in
Polk County, Florida.
c.
Seller
and Purchaser will 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. Purchaser further agrees that upon completion of any
such inspections or tests, the Subject Property will be restored to its former
condition by Purchaser. The obligations of Purchaser to indemnify Seller for
any
and all losses, damages, costs, or expenses due to Purchaser’s inspections and
tests and to restore the Subject Property to its former condition set forth
in
this Article XIII shall survive the termination or cancellation of this
Contract.
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: |
Xxx
Xxxx, Trustee
000
X. Xxxxxxxx Xx.
Xxxxxxx,
Xxxxxxx 00000
Telephone
No.: (000) 000-0000
Fax
No. : (000) 000-0000
Email:
XxxXXxxx@xxxxx.xxx
|
|
| With required copy to: |
Chun-xx Xx, Esq.
Law
Offices of Xxxxxx & Wu, P.L.
000
X. Xxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
Telephone
No.: (000) 000-0000
Fax
No.: (000) 000-0000
Email:
xxxxxx@xxxxxxxxx.xxx
|
|
| Purchaser: |
Silverleaf
Resorts, Inc.
0000
Xxxxx Xxxx Xx.
Xxxxx
000
Xxxxxx,
Xxxxx 00000
Attn:
Xxxxxx X. Xxxx
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxx@xxxxxxxxxxxxxxxxx.xxx
|
|
| With required copy to: |
Xxxxxx
X. Xxxxxx, Esq.
Meadows,
Owens, Collier, Reed,
Cousins
& Blau, L.L.P.
000
Xxxx Xx., Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Telephone
No.: (000) 000-0000
Facsimile
No.: (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
$100.00) 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 not assign Purchaser’s rights under this Contract without first obtaining
Seller’s prior written approval, which approval shall not be unreasonably
withheld or delayed. In the event of any assignment hereunder, Purchaser will
nevertheless remain liable for the performance of all of Purchaser’s duties and
obligations hereunder.
XVIII
INTERPRETATION
AND APPLICABLE LAW
This
Agreement shall be construed and interpreted in accordance with the laws of
the
State of Florida. 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
Buyer/Purchaser
shall have until 5:00 o'clock p.m., July 10, 2005, to execute and return a
fully
executed original of this Contract to Seller, otherwise this Contract shall
become null and void. Time is of the essence of this Contract. The date of
execution of this Contract by Buyer/Purchaser 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 Florida, 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 Florida.
ARTICLE
XXVI
ESCROW
The
Escrow Agent receiving funds is authorized and agrees by acceptance of them
to
deposit them promptly, hold same in escrow and, subject to clearance, disburse
them in accordance with the terms and conditions of this Contract. Failure
of
clearance of funds shall not excuse Purchaser's performance. If in doubt as
to
Escrow Agent's duties or liabilities under the provisions of this Contract,
Escrow Agent may, at Escrow Agent's option, continue to hold the subject matter
of the escrow until the parties mutually agree to its disbursement, or until
the
judgment of a court of competent jurisdiction shall determine the rights of
the
parties or Escrow Agent may deposit the subject matter of this escrow with
the
Clerk of the Circuit Court having jurisdiction over the dispute. Upon notifying
all parties concerned of such action, all liability on the part of Escrow Agent
shall fully terminate, except to the extent of accounting for any items
previously delivered out of escrow. Any suit between Purchaser and Seller where
Escrow Agent is made a party because of acting as Escrow Agent hereunder, or
in
any suit wherein Escrow Agent interpleads the subject matter of the escrow,
Escrow Agent shall recover reasonable attorney's fees and costs incurred with
the fees and costs charged and assessed as Court costs in favor of the
prevailing parties. The parties agree that the Escrow Agent shall not be liable
to any party or person for misdelivery to Purchaser or Seller of items subject
to this escrow, unless such misdelivery is due to the willful breach of this
Contract by Escrow Agent.
ARTICLE
XXVII
REAL
ESTATE COMMISSION
In
the
event that this Contract closes, but not otherwise, Seller agrees to pay at
closing a real estate commission in the amount of six percent (6%) of the
purchase price payable hereunder, such commission to be paid to Cino
International, Inc., a Florida corporation. 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,
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, 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 XXVII shall survive the closing.
EXECUTED
on this the 5th day of July, 2005.
SELLER:
/S/
XXX XXXX,
TRUSTEE
Xxx
Xxxx,
Trustee
EXECUTED
on this the 23 day of June, 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:
FIRST
AMERICAN TITLE INSURANCE COMPANY
By:
/S/
XXXXXXXX X. XXXXXXXXX
Name:
Xxxxxxxx X.
Vorriveau
Its:
VP
Exhibits
to Agreement not filed herewith:
Exhibit
A: Property Description
Exhibit
B: Surveyor's Certification
