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EXHIBIT 10.11
AMENDMENT TO AGREEMENT AND TO PROMISSORY NOTE
This amends (a) that certain Agreement between Xxxxxxx X. XxXxxxx and
M. Xxxxxxxxx XxXxxxx (collectively "DeJusto") and Southwind Development
Company, L.L.C. ("Southwind") (as successor-in-interest to XxxXxxxx
Enterprises, Inc.) dated as of March 20, 1998, and (b) that certain Promissory
Note from Southwind to DeJusto dated as of April 16, 1998, in the original
principal amount of $541,500.00. The parties agree as follows:
1. Should Southwind fail to make any principal or interest
payment due under said note within ten (10) days after the day
the same becomes due and payable, Southwind shall owe and pay
a late charge equal to ten percent (10%) of the amount of the
delinquent payment. Further there shall be no partial
prepayments under this Agreement and no prepayments of any
sort prior to January 2000.
2. All references to August 17, 1999, in the Agreement and in
the Promissory Note are hereby changed to August 17, 2000;
provided, however, that the change to August 17, 2000, shall
be deemed a change to January 15, 2000, unless as of January
15, 2000, Southwind certifies to DeJusto that at least
sixty-three (63) of the Hotel Guest Units in Beachside All
Suites Hotel, a Condominium, have been sold under
pre-construction agreements (in connection with such
certification, Southwind may assume that DeJusto has exercised
his option to purchase four (4) additional Units -- in
addition to the Unit to be conveyed to DeJusto under the terms
of subparagraph 2(b) of the Agreement -- for a total of five
(5) units) ("sold" means under contract for sale, subject to
the terms and conditions of such contract(s)) and that
Southwind has obtained its building permit to construct the
hotel building.
3. The parties agree to amend subparagraph 2(b) of the Agreement
as follows: The phrase "Buyer shall select a unit either on
the ground floor or the first living floor, that meets with
Sellers approval, to be conveyed to Seller" shall be changed
to read "Buyer shall reserve for the Sellers Xxxx 000, a unit
to be constructed on the top floor as depicted on the Buyer's
pre-construction price list dated February 16, 1999. When
completed, this unit will be conveyed to Sellers at no
additional cost or expense to Sellers as to sales price.
Sellers shall pay ordinary closing costs and association
capital contributions as are ordinarily paid by buyers of
condominium units in the area as set out in a standard
pre-construction purchase agreement as set out below. Buyer
acknowledges having received a copy of the preliminary
prospectus dated June 22, 1999, pertaining to Seller's
offering of condominium units as securities. Both parties
agree that Buyer is not obligated to purchase Unit 902 or any
units unless and until Buyer signs a binding purchase
agreement and that no purchase agreement will be available for
Buyer's signature unless and until Seller's registration with
the SEC has been declared effective. Therefore, any obligation
to purchase on the part of the Buyer will remain completely
revocable by Buyer until the SEC has declared Seller's
registration effective.
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4. Should DeJusto exercise his right of first refusal to purchase up
to four (4) additional units under the terms set out in
subparagraph 2(c) of the Agreement, then the parties further agree
that the purchase agreement(s) for the purchase of such units shall
not require DeJusto to put up xxxxxxx money deposits in escrow to
secure his performance under such contract(s) so long as the
principal amount due to DeJusto under the above recited Promissory
Note exceeds the amount of escrowed funds which would otherwise be
required under the terms and conditions offered to other
purchasers.
In all other respects, the said Agreement, the Promissory Note, and
the mortgage securing said Promissory Note, are hereby ratified Xxxxxx X.
XxxXxxxx, as guarantor of the obligations under said Promissory Note, hereby
consents to the above amendment.
/s/ Xxxxxxx X. XxXxxxx
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XXXXXXX X. XXXXXXX
/s/ M. Xxxxxxxxx X. XxXxxxx
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M. XXXXXXXXX X. XXXXXXX
Southwind Development Company, L.L.C.
By: /s/ Xxxxxx X. XxxXxxxx
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XXXXXX X. XXXXXXXX
As Its Manager
By: /s/ Xxxxxx X. XxxXxxxx
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XXXXXX X. XXXXXXXX
