CONTRACT OF SALE

This Contract is entered into by and between JOE WANG, TRUSTEE ("Seller"), and SILVERLEAF RESORTS, INC., a Texas corporation ("Purchaser").

 

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:

 

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").

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 earnest 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:

(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 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;

(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;

(vi)

Both the Note and the Mortgage shall otherwise be in form and substance satisfactory to counsel for Seller and Purchaser.

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 2101 Park Center Drive, Suite 190, Orlando, Florida 32835, to the attention of Mitchell S. Corriveau, 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) ("Earnest Money"). All Earnest 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 Earnest 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 Earnest 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 earnest money deposit to Seller; upon such disbursement the $50,000.00 earnest 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 earnest 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 Earnest Money shall be applied in partial satisfaction of the purchase price hereunder. In the event that this Contract does not close, then the Earnest 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 Earnest 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.

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 Lamar 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 Lamar 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.  

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.

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 earnest money (less $100.00) to Purchaser.

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.

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 earnest money (less $100.00) to Purchaser.

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.

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.

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.

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.

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.

Possession of the Property free and clear of all uses and encroachments, except the Permitted Exceptions, shall be delivered to Purchaser at closing.

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:	Joe Wang, Trustee 620 E. Colonial Dr. Orlando, Florida 32803 Telephone No.: (407) 354-3318 Fax No. : (407) 354-3319 Email: ***@***

 

 

 

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 Earnest 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) sue 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 Earnest Money. The Earnest 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 Earnest Money as Seller's total damages and relief.

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.

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.

 

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.

Each person executing this Contract warrants and represents that he is fully authorized to do so.

 

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.

 

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.

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.

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.

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.

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.

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.

Joe Wang, Trustee

EXECUTED on this the 23 day of June, 2005.

SILVERLEAF RESORTS, INC. 

By: /S/ ROBERT E. MEAD                                                       

Name: Robert E. Mead                                                              

Its: CEO                                                                                       

 

RECEIPT OF EARNEST MONEY AND ONE (1) EXECUTED COUNTERPART OF THIS CONTRACT IS HEREBY ACKNOWLEDGED:

FIRST AMERICAN TITLE INSURANCE COMPANY

By:  /S/ MITCHELL S. CORRIVEAU  

Name:  Mitchell S. Vorriveau                 

Its:  VP                                                       

Exhibits to Agreement not filed herewith:

Exhibit A: Property Description

Exhibit B: Surveyor's Certification