Ex. 10.2
FIRST AMENDMENT TO CONTRACT OF SALE
This First Amendment to Contract of Sale is made and entered into as of
the 18th day of March, 2004, by and between XXXX, INC., a Florida corporation
("Seller"), and SILVERLEAF RESORTS, INC., a Texas corporation ("Purchaser").
W I T N E S S E T H
WHEREAS, on or about February 12, 2004, Seller and Purchaser entered into
that certain Contract of Sale pursuant to which Seller agreed to sell and
Purchaser agreed to purchase certain tracts of land containing approximately 5.3
acres, more or less, situated in Davenport, Polk County, Florida, being more
particularly described in the Contract (the "Property"); and
WHEREAS, Seller and Purchaser desire to modify the terms and conditions of
the Contract pertaining to the manner of payment of the purchase price and the
Prior Indebtedness in certain respects;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and other good and valuable consideration, the receipt,
accuracy and sufficiency of which is hereby acknowledged, Seller and Purchaser
hereby agree as follows:
1. Article IV of the Contract is hereby amended by adding the following
provisions at the conclusion thereof:
Notwithstanding the foregoing or anything to the contrary contained
herein, in the event that, at least five (5) business days prior to the closing
hereunder, Seller has not obtained the approval of the holder of the Prior
Indebtedness to the sale of the Subject Property to Purchaser subject to the
Prior Indebtedness and to the manner of payment of the Prior Indebtedness as set
forth in Article II hereinabove, then at closing Seller shall pay and discharge
the Prior Indebtedness in its entirety, all liens securing payment of the Prior
Indebtedness shall be released, and the Purchase Price for the Subject Property
in the amount of $6,000,000.00 shall be payable in the following manner:
(a) One Million Five Hundred Thousand and No/100 Dollars
($1,500,000.00) shall be payable in cash at the closing; and
(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 Four Million Five
Hundred Thousand and No/100 Dollars ($4,500,000.00). The Note shall
provide and be secured as follows:
(i) The Note shall bear interest at the rate of seven percent
(7%) per annum;
(ii) The principal balance of the Note shall be payable in
thirty-six (36) successive monthly installments, the first of such
installments to be due and payable thirty (30) days following the
date of closing, and a like installment to be due and payable on the
same day of each month thereafter, through and including the
thirty-sixth (36th) month thereafter. The first thirty-five (35) of
such principal installments shall each be in the amount of
$50,000.00, and the thirty-sixth (36th) and final installment shall
be in the amount of the then remaining unpaid principal balance of
the Note. Each monthly installment of principal shall be accompanied
by a payment of all then accrued but unpaid interest on the
outstanding principal balance of the Note;
(iii) The Note shall provide that it may be prepaid at any
time, in whole or in part, without premium or penalty, and that
interest shall immediately cease to accrue on any part of the Note
so prepaid; any partial prepayment shall be applied first to accrued
interest and then to the next maturing installment of principal due
on the Note;
(iv) Both the Note and the Mortgage, as defined below, shall
provide that upon the occurrence of a monetary 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 same before exercising any of Seller's remedies
thereunder, and that upon the occurrence of a non-monetary default
thereunder, Seller must provide Purchaser with written notice
thereof and permit Purchaser to have thirty (30) days from the date
of the notice within which to cure the same before exercising any of
Seller's remedies thereunder; and
(v) The Note shall be secured by a Mortgage and Security
Agreement (the "Mortgage") covering the Subject Property to be
executed by Purchaser and delivered at the time of closing;
Purchaser shall be entitled to obtain releases of the timeshare
units included as part of the Subject Property and of the remaining
land, building and amenities comprising the Subject Property in the
following sequence and manner. After closing, Purchaser shall be
entitled to commence obtaining releases of the timeshare units in
Buildings A and D from the first lien created by the Mortgage and
held by the Seller for the purpose of securing payment of the Note.
Each such release of a timeshare unit will also include a release of
the furniture and fixtures contained therein. Seller shall not be
required to grant any release when the initial cash down payment is
made by Purchaser at the time of closing; thereafter, for every
$125,000.00 of principal which is paid by Purchaser on the Note,
Purchaser shall be entitled to obtain the release of one timeshare
unit in either Building A or Building D on a cumulative basis
regardless of whether a release is requested at the time Purchaser
has become entitled to obtain any such release. Aside from granting
releases of the timeshare units contained in Buildings A and D,
Seller shall not be required to release any other portion of the
Subject Property until such time as the remaining balance of the
Note has been paid in full. In addition to granting releases as set
forth hereinabove, at such time as Purchaser executes a timeshare
declaration for the purpose of subjecting any portion of the Subject
Property to a timeshare regime, Seller must join in the execution of
such declaration for the purpose of
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subordinating the liens which secure payment of the Note to the
timeshare regime created thereby so that in the event of a
foreclosure the rights of the purchasers of timeshare units will not
be disturbed or impaired. Such subordination shall be in form and
substance reasonably acceptable to Seller. At the time of filing of
the timeshare declaration, if deemed necessary by Seller, Purchaser
shall also execute and record an easement for the benefit of the
future owners/occupants of the remainder of the Subject Property not
included within the timeshare regime granting such owners/occupants
the right to use the amenities included within the portion of the
Subject Property comprising the timeshare regime provided that such
owners/occupants pay a proportionate share of the costs of operating
and maintaining such amenities.
(vi) In addition to the foregoing, the Note and Mortgage shall
contain all terms and provisions customarily used in the State of
Florida for transactions of this type.
Except as specifically set forth above, all terms and conditions of the
Contract shall remain in full force and effect. All capitalized terms not
otherwise defined herein shall have the meaning given to such terms in the
Contract.
IN WITNESS WHEREOF, the undersigned have executed this Amendment, as of
the date and year first above written.
SELLER:
XXXX, INC., a Florida corporation
By: /S/ XXXXXX X. BOSS
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Name: Xxxxxx X. Boss
Its: President
PURCHASER:
SILVERLEAF RESORTS, INC., a Texas corporation
By: /S/ XXXXXX X. XXXX
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Name: Xxxxxx X. Xxxx
Its: CEO
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