AMENDMENT NO. 1 TO CONTRIBUTION AGREEMENT
AMENDMENT
NO. 1 TO
This
Amendment No. 1 to the Contribution Agreement, dated as of October 28,
2009 (this “Amendment”), to the
Contribution Agreement dated as of September 2, 2009 (the “Contribution Agreement”) is entered into by
and among Secure America Acquisition Corporation, a Delaware corporation,
(“Secure”), Ultimate
Resort Holdings, LLC, a Delaware limited liability company (“Ultimate Resort”), Ultimate
Escapes Holdings, LLC, a Delaware limited liability company (the “Company”), and the
representative (the “Member Representative”) of the
holders of the issued and outstanding membership interests of the Company and Ultimate Resort.
1. Reference
to Contribution Agreement; Definitions. Reference is made to
the Contribution Agreement and, specifically, to Section 7.4 thereof entitled,
“Amendment.” Terms defined in the Agreement and not otherwise defined
herein are used herein with the meanings defined in the Contribution
Agreement.
2. Amendments
to the Contribution Agreement. The Contribution Agreement is
hereby amended as follows:
a. The
second recital of the Contribution Agreement is hereby deleted in its entirety
and is replaced instead with the following new recital:
“WHEREAS,
Secure wishes to contribute the Secure Contribution Property to the Company in
exchange for the issuance to Secure of 1,506,343 units in the Company
(each, a “Unit,” and
collectively, the “Units”); provided such number
of Units shall be subject to adjustment upward on a one for one basis to the
extent less than 8,794,925 shares of Secure Common Stock (as such term is
hereafter defined) are not converted into cash or subject to expected retirement
based upon forward contracts immediately following the Closing;”
b. Section
1.1(a) of the Contribution Agreement is hereby deleted in its entirety and is
replaced instead with the following new Section 1.1(a):
“1.1 Contributions to the Company by the
members and Secure.
(a) Subject
to and upon the terms and conditions of this Agreement and the other agreements
contemplated hereby, Secure will contribute and deliver to the Company on the
Closing Date as of the Effective Time (as each such term is hereinafter defined)
a minimum of Eight Million Dollars ($8,000,000) in immediately available
funds (collectively, the “Secure Contribution
Property”). Subject to the minimum threshold set forth above,
the Secure Contribution Property shall equal at least Seventy Percent (70%)
of the amount of cash held in the Trust Fund (as hereinafter defined) on the
Closing Date (i.e.,
after payments for any conversions by holders of shares of Secure Common Stock
into a pro rata portion of the cash held in the Trust Fund), less the following
amounts: (a) Secure’s accrued expenses and expenses of the
transactions contemplated hereby, in an amount mutually agreed with the Company;
(b) any and all tax liabilities of Secure; and (c) payments made in relation to
bridge loan arrangements, forward contracts or other mechanics entered into in
connection with obtaining the Required Secure Vote (as hereinafter
defined).
c. A
new Section 1.1(c) will be added to the Contribution Agreement as
follows:
“(c) As
a condition to the contribution by Secure of the Secure Contribution Property,
Ultimate Resort (and any of its assignees) shall be entitled to a total
aggregate of 377,834 Units at Closing, equivalent to a total of Three Million
Dollars ($3,000,000) to satisfy certain tax liabilities incurred by Ultimate
Resort and its members in relation to the transactions contemplated
hereby.”
d. Section
1.2 of the Agreement entitled, “Issuance of Membership Interests to
Secure,” is hereby amended by deleting the references to “4,687,500” and
“6,250,000” and replacing them with “1,506,343” and “8,794,925” respectively,
such that Section 1.2 of the Contribution Agreement, as amended, shall read as
follows:
1.2 Issuance of Membership Interests to
Secure. On the Closing and at the Effective Time, subject to
the terms and conditions set forth herein and in the Operating Agreement, the
Company shall issue to Secure 1,506,343 Units pursuant to Section 3 of the
Operating Agreement; provided such number of Units shall be subject to
adjustment upward on a one for one basis to the extent less than 8,794,925
shares of Secure Common Stock are not converted into cash or subject to expected
retirement based upon forward contracts immediately following the
Closing.
e. Section
6.2(j), entitled, “Underwriting Commissions,”
shall be deleted and the following subsections of Section 6.2 shall be
renumbered accordingly.
f. All
references to Exhibit F in the Contribution Agreement shall be
deleted.
3. Miscellaneous. Except
as otherwise set forth herein, the Agreement shall remain in full force and
effect without change or modification. This Amendment may be executed
in any number of counterparts, all of which together shall constitute one
instrument, and shall bind and inure to the benefit of the parties and their
respective successors and assigns.
(Remainder
of page intentionally left blank. Signature page to
follow.)
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IN
WITNESS WHEREOF, each Party hereto has caused this Contribution Agreement to be
signed and delivered by its respective duly authorized officer as of the date
first above written.
| SECURE AMERICA ACQUISITION CORPORATION | |||
|
|
By:
|
/s/ C. Xxxxxx XxXxxxxx | |
| C. Xxxxxx XxXxxxxx, Co-Chief Executive Officer | |||
| ULTIMATE ESCAPES HOLDINGS, LLC | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxxxx | |
| Xxxxx X. Xxxxxxxxxx,
President and Chief Executive Officer |
|||
| ULTIMATE RESORT HOLDINGS, LLC | |||
|
|
By:
|
/s/ Xxxxx X. Xxxxxxxxxx | |
| Xxxxx X. Xxxxxxxxxx,
President and Chief Executive Officer |
|||
| MEMBER REPRESENTATIVE: | ||
| /s/ Xxxxx X. Xxxxxxxxxx | ||
|
|
Xxxxx X. Xxxxxxxxxx |
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