FIRST AMENDMENT TO AMENDED AND RESTATED AGREEMENT
FOR SALE AND PURCHASE OF ASSETS
This First Amendment to Amended and Restated Agreement for Sale and
Purchase of Assets (the "First Amendment") made effective the 30th day of June,
2003, amends that certain Amended and Restated Agreement for Sale and Purchase
of Assets with an effective date of June 13, 2003 between Homes by Xxxxxx, LLC,
a Florida limited liability company, formerly known as Island Club Riverside
Properties, LLC, a Florida limited liability company, or assigns ("Purchaser"),
Xxxxxx, Inc. a New Jersey corporation ("Xxxxxx") and Xxxxxx Homes Corp., a
Tennessee corporation ("Seller") (the "Agreement").
W I T N E S S E T H:
Seller, Purchaser, and Xxxxxx have agreed to increase the Xxxxxxx Money,
extend the Closing Date, and make other amendments to the Agreement:
RECITALS
1. Seller, Purchaser, and Xxxxxx having agreed to various amendments
under the Agreement, desire to memorialize those agreements and
understandings as more specifically set forth hereafter.
NOW, THEREFORE, incorporating the foregoing recitals of fact, and in
consideration of Ten and No/100 Dollars ($10.00) in hand paid by each party to
each other party and the mutual promises contained herein, the Seller, the
Purchaser, and Xxxxxx agree as follows:
1. The Closing Date under the Agreement shall be August 29, 2003; the Cut
Off Date shall be 11:59 P.M. on August 25, 2003; and the date on which
Seller and Purchaser shall deliver executed closing documents to
Escrow Agent, and Purchaser shall transfer to Seller Seller's proceeds
and to Escrow Agent the balance of the funds necessary to consummate
the transaction contemplated by the Agreement, shall be August 28,
2003.
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2. Seller acknowledges receipt of Seventy Five Thousand and No/100
Dollars ($75,000.00) in Xxxxxxx Money as described in Section 1.14 of
the Agreement. Purchaser is, simultaneously with execution of this
First Amendment, delivering to Seller an additional Three Hundred
Twenty Five Thousand and No/100 Dollars ($325,000.00), which shall be
added to the Xxxxxxx Money presently held by Seller, and all of which
shall be hereafter deemed the Xxxxxxx Money. Seller and Purchaser
agree that of the Four Hundred Thousand and No/100 Dollars
($400,000.00) in Xxxxxxx Money, Three Hundred Twenty Five Thousand and
No/100 Dollars ($325,000.00) shall be applicable to the Purchase
Price, and that Seventy Five Thousand and No/100 Dollars ($75,000.00)
of said Xxxxxxx Money shall not be applicable to the Purchase Price,
but shall be deemed an extension fee hereunder for extension of the
Closing under the Agreement from July 1, 2003 to August 29, 2003.
Purchaser further acknowledges that the entire Xxxxxxx Money is at
risk and nonrefundable on delivery to Seller and shall not be refunded
by Seller to Purchaser for any reason whatsoever other than failure of
Seller to deliver the previously approved closing documents at
Closing, or a material default by Seller under the Agreement.
Purchaser specifically agrees and acknowledges that no actions taken
by the Association or members thereof against Seller, including
litigation, shall allow termination of the Agreement or avoidance of
Closing by Purchaser.
3. Section 3.4 of the Agreement is deleted in its entirety, as Seller
will complete construction on Lot 106 prior to the Closing Date.
4. Purchaser has advised that Purchaser will make arrangements for a
licensed general contractor to pull permits for Purchaser from and
after the Closing Date (the "New Qualifier"). On the Closing Date,
Purchaser shall make arrangements for transfer of all outstanding
permits related to the Included Assets (the "Outstanding Permits") to
be transferred from the Qualifier to the New Qualifier at no cost or
expense to Seller. In the event the Outstanding Permits are
transferred on the Closing Date from the Qualifier to the New
Qualifier, the provisions of the first, second, third, fourth, and
last sentences of Section 7.13 and all of Section 7.14 of the
Agreement shall be of no force or effect. Seller agrees that Seller,
prior to the Closing Date, shall continue to pull permits for any of
the Vacant Lots which are sold prior to the Closing Date in the
ordinary course of business, and Seller further agrees to pull one (1)
permit for a model to be constructed by Purchaser on one
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of the Vacant Lots after the Closing (the "Model Permit"), provided
that (i) other than taking appropriate steps to receive the Model
Permit, no construction activities whatsoever shall occur on the
Vacant Lot which is the subject of the Model Permit prior to Closing;
(ii) Seller shall not be required to remove the construction trailer
which currently is located on Lot 1, even if such failure to relocate
said construction trailer means that the Model Permit is not available
for Lot 1; and (iii) any expenses relating to further refinement or
finalization of plans which is necessary in order to obtain the Model
Permit shall be done at the sole cost and expense of Purchaser.
5. Purchaser agrees and acknowledges that no loss of one or more
Employees, termination of one or more of the Leases, termination of
one or more of the Contracts, or termination of one or more of the
Existing Purchase Agreements shall either affect the Purchase Price,
allow termination of the Agreement by Purchaser, or allow avoidance of
Closing thereafter. Seller agrees not to take any actions designed to
cause a loss of Employees, termination of one or more of the Leases,
termination of one or more of the Contracts, or termination of one or
more of the Existing Purchase Agreements. Seller further agrees to
comply with its obligations under the Leases, the Contracts and the
Existing Purchase Agreements.
6. Seller shall continue to market the Vacant Lots and Speculative Units,
but the pace of construction on the Speculative Units shall be
determined in Seller's sole and unfettered discretion, including
cessation of construction activities on the Speculative Units.
Regarding Backlog Units, Seller agrees to continue the normal pace of
construction in connection with said Backlog Units. Seller agrees to
continue its existing sales and business practices in connection with
sale of the Speculative Units and construction of the Backlog Units.
7. As additional consideration from Purchaser and Xxxxxx to Seller to
enter into this First Amendment, Purchaser and Xxxxxx confirm that all
matters of title, survey, the environmental condition of the Property,
and all other due diligence matters known to Purchaser and Xxxxxx as
of the date of execution of this First Amendment are agreed to and
accepted by Purchaser and Xxxxxx. Purchaser specifically confirms to
Seller that Seller shall not be required to take any further actions
relating to matters of title, survey, or the environmental condition
of the Property other than those actions in
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connection with title documentation which have been agreed between
Seller's counsel and Purchaser's counsel. Notwithstanding the
foregoing, Seller agrees not to take any actions which would change
the status of title, survey, the environmental condition of the
Property, or any other material aspect of the Property between
execution of this First Amendment and Closing other than in the normal
course of business.
8. Purchaser acknowledges that Purchaser's inspection rights under the
Agreement relating to the Backlog Units and the Speculative Units
shall be exercised in such a way as not to interfere with construction
activities in any manner. Purchaser further acknowledges that no
representative of Purchaser shall have any authority to direct
Seller's Employees, employees, workers, and agents in any manner
relating to construction on Backlog Units and Speculative Units.
9. Purchaser agrees that Purchaser shall have no direct contact with any
of the Employees or any of Seller's other employees, agents, or
representatives except to the extent that such communication is
coordinated through and approved by Mr. Xxxx Small of the Orlando
Division of Seller.
10. Seller, Purchaser, and Xxxxxx agree that the proration date for
proration of ad valorem real property taxes shall remain July 1, 2003,
notwithstanding that the Closing Date has been extended to August 29,
2003.
11. Concerning the provision of financial information in connection with
prior operations by Seller, Seller agrees that Seller shall respond
within three (3) business days to any request of Purchaser for
financial information indicating whether or not Purchaser elects to
provide such information. Seller shall have no duty to provide
financial information on its prior operations, the provision of any
information being in Seller's sole and absolute discretion.
12. In connection with Purchaser's acquisition of the Included Assets,
Purchaser shall provide Seller copies of any proposed filings with the
Securities and Exchange Commission or any other governmental entity
not less than ten (10) days prior to proposed filing of such
information. Such filings shall be subject to the reasonable approval
of Seller, which approval shall not be unreasonably withheld,
conditioned, or delayed. Seller agrees that
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it will review and return any comments to such filings within three
(3) business days of receipt. Further, Seller and Purchaser shall
jointly agree on a press release to be promulgated within five (5)
business days after the Closing, and further agree that prior to the
Closing, no public announcement of Purchaser's proposed acquisition of
the Included Assets shall be permitted.
13. To the extent of any conflicts or inconsistencies between the
Agreement and this First Amendment, this First Amendment shall
control. Except as expressly amended by this First Amendment (or
impliedly amended to the extent of any conflict or inconsistency
between the Agreement and this First Amendment), the Agreement remains
in full force and effect according to the terms and conditions stated
therein.
14. This First Amendment may be executed in any number of counterparts
which together shall constitute one and the same instrument, and the
signature of any party to any counterpart of this First Amendment may
be appended to any other counterpart of this First Amendment.
IN WITNESS WHEREOF, the parties have executed this First Amendment under
seal on the day first written above.
PURCHASER:
HOMES BY XXXXXX, LLC, a Florida limited liability company,
By: __________________________
Its ___________________________
SELLER:
BEAZER HOMES CORP., a Tennessee corporation
By: _________________________
Its: __________________________
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XXXXXX:
XXXXXX, INC., a New Jersey corporation
By:
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Its:
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ORL1 #782426 v3
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