EXHIBIT 10.1
THIRD AMENDMENT TO AGREEMENT FOR SALE AND PURCHASE
OF REAL AND PERSONAL PROPERTY
THIS THIRD AMENDMENT TO AGREEMENT FOR SALE AND PURCHASE OF REAL AND
PERSONAL PROPERTY (hereinafter referred to as the "Amendment"),
effective October 23, 2003 (hereinafter referred to as the "Effective
Date"), is by and between PRESIDENT XXXXXXXXXX HOTEL, L.L.C., a
Mississippi limited liability company, successor to BH Acquisition
Corporation (hereinafter referred to as "Seller"), and A. D. JULDAN
ENTERPRISES, LLC, a Mississippi limited liability company (hereinafter
referred to as "Purchaser").
WHEREAS, Seller and Purchaser entered into that certain Agreement for
Sale and Purchase of Real and Personal Property, dated June 2, 2003, and
amended by that certain Amendment to Agreement for Sale and Purchase of
Real Estate and Personal Property, dated August 29, 2003, and last
revised September 5, 2003, and amended by that certain Second Amendment
to Agreement for Sale and Purchase of Real Estate and Personal Property,
effective as of September 5, 2003 (such agreement and amendments
hereinafter collectively referred to as the "Agreement").
WHEREAS, Seller and Purchase desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and other
valuable consideration, the receipt and sufficiency of which is
acknowledged, Seller and Purchaser agree as follows:
1. Notwithstanding anything in the Agreement to the contrary,
Purchaser's Deposits, and accrued interest thereon, if any, held by
Escrow Agent, as provided in Section 2.2(a) and (b) of the Agreement,
shall be irrevocable and immediately released by Escrow Agent to Seller
and shall not be applied to the Purchase Price. The Purchase Price
shall not be reduced by any payment made to Seller as provided herein.
2. Notwithstanding anything in the Agreement to the contrary, upon
execution of the Amendment, Purchaser shall deliver the sum of
Twenty-Five Thousand Dollars ($25,000) to Seller at the following
address: President Xxxxxxxxxx Hotel, L.L.C., 0000 Xxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxxxxx 00000, Attn: Xxxxx Xxxxx. On or before each of the
following dates, December 1, 2003, January 1, 2004, and February 1,
2004, Purchaser shall deliver the sum (individually and collectively,
the "Initial Extension Fees") of Twenty-Five Thousand Dollars ($25,000)
to Seller at the address provided herein, to amount to a total of
$100,000 in payments provided herein, no matter when Closing occurs.
The payments provided herein shall be irrevocable and shall not be
applied to the Purchaser Price. The Purchase Price shall not be reduced
by any payment made to Seller as provided herein.
3. The Purchaser Price, as provided in Section 2.1 of the Agreement,
shall be increased to Thirteen Million One Hundred Thousand Dollars
($13,100,000).
4. Section 6.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
6.1 Except as otherwise provided in this Section 6.1, the
consummation of 40
the transactions described in this Agreement (the "Closing") shall occur
on or before February 27, 2004 (the "Closing Date"), and the closing
shall be held at the offices of Allen, Vaughn, Xxxx & Hood, P.A. (the
"Closing Attorney") in Gulfport, Mississippi. TIME IS OF THE ESSENCE IN
REGARD TO THE PERFORMANCE BY PURCHASER AND SELLER OF ALL OF THE
PROVISIONS OF THIS AGREEMENT. Purchaser may extend the Closing Date
(the "Extension Period") up to two additional months upon delivery to
Seller of the additional sum (individually or collectively, the
"Additional Extension Fees") of Twenty-Five Thousand Dollars ($25,000)
per month. Any and all Additional Extension Fees shall be irrevocable
and shall not be applied to the Purchase Price upon Closing. The
Purchase Price shall not be reduced by any payment made to Seller as
provided herein.
5. Notwithstanding anything in the Agreement to the contrary, Seller
shall have the right to exclusive possession of the Project (the
"Possession Period") until April 19, 2004. If such Possession Period
extends beyond Closing, Seller shall pay to Purchaser One Dollar ($1.00)
at Closing, and Seller shall not be liable to Purchaser for any other
payments or fees associated with Seller's possession of the Project
during the Possession Period.
6. Notwithstanding anything in the Agreement to the contrary, the
Project conveyed in this Agreement shall include twelve (12) existing
golf carts in their current condition and shall not include the
following tangible personal property used in connection with the golf
course: pro shop inventory, golf course grounds equipment, any and all
remaining golf carts and other golf equipment.
7. This Amendment shall be subject to the approval of the holder of
the first deed of trust encumbering the Property and subject to the
Purchaser filing its appeal of the decision of the Biloxi City Council's
vote upon the application for rezoning of the Property. Purchaser shall
promptly deliver reasonable written evidence to Seller of such filing.
8. Section 9.1 of the Agreement is hereby deleted in its entirety and
replaced with the following:
9.1 If Purchaser (a) fails to purchase the Project by the Closing
Date, as such Closing Date may be adjusted as provided in Section 6.1 of
this Agreement, for reasons other than Purchaser's inability to obtain a
zoning change or variance necessary to convert the Property from a golf
course to commercial retail and dense residential site, including the
filling in of a manmade pond, or (b) fails to perform any other
obligation provided in this Agreement, as the same may be amended from
time to time, then Seller shall have the right to (i) terminate this
Agreement by giving Purchaser written notice thereof and no party to
this Agreement shall have any further claim, agreement, or obligation to
any other party to this Agreement, and any lien of Purchaser against the
Project shall automatically cease, terminate and be released or (ii)
pursue any other remedies available to it at law or in equity,
including, without limitation, specific performance.
9. Except as otherwise modified herein, the terms and conditions of
the Agreement, as amended, shall remain in full force and effect and are
hereby reaffirmed by the parties.
10. This Amendment may be executed in any number of counterparts,
which,
2
taken together, shall constitute one and the same instrument, and may be
executed by facsimile transmission, provided that an original promptly
follows any such facsimile.
IN WITNESS WHEREOF, the Seller and Purchaser have caused this Third
Amendment to the Agreement for Sale and Purchase of Real and Personal
Property to be executed by its proper officers this 24 day of October,
2003, but effective as of October 23, 2003.
SELLER:
PRESIDENT XXXXXXXXXX HOTEL, L.L.C.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
Chief financial Officer
PURCHASER:
A. D. JULDAN ENTERPRISES, LLC
By: /s/ Xxxxxx Xxxxx
------------------------
Printed Name: Xxxxxx Xxxxx
Title: Member for A.D. Juldan
