Ex. 10.5
SECOND AMENDMENT TO CONTRACT OF SALE
This Second Amendment to Contract of Sale is made and entered into as
of the 17th day of March, 2004, by and between FO SKI RESORTS, LLC ("FOSR"), a
Massachusetts limited liability company, and BRODIE MOUNTAIN RESORTS, INC.
("BMR"), a Massachusetts business corporation (FOSR and BMR are herein referred
to collectively as "Seller"), and SILVERLEAF RESORTS, INC., a Texas corporation
("Purchaser").
W I T N E S S E T H
WHEREAS, on December 24, 2002, Seller and Purchaser entered into that
certain Contract of Sale pursuant to which Seller agreed to sell and Purchaser
agreed to purchase that certain tract of land containing approximately 500
acres, more or less, located on Route 7 in New Ashford, Berkshire County,
Massachusetts, being more particularly described in the Contract (the
"Property"); and
WHEREAS, pursuant to a First Amendment to Contract of Sale dated April
3, 2003, Seller and Purchaser agreed on certain modifications in the terms and
conditions of the Contract (hereinafter the Contract as modified is referred to
as the "Contract"); 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 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. Notwithstanding anything to the contrary contained in the
Contract, Seller and Purchaser hereby agree that the purchase price for the
Subject Property which is set forth in Article II of the Contract and which
remains the sum of $2,600,000.00 shall be payable in the following manner:
(a) $900,000.00 of the total purchase price payable for
the Subject Property shall be payable in cash at the closing; the
$200,000.00 in earnest money which has already been delivered by
Purchaser to Seller pursuant to the Contract shall be applied in
partial satisfaction of the cash portion of the purchase price payable
for the Subject Property;
(b) The remainder 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 amount of $1,700,000.00. The Note
shall provide and be secured as follows:
(i) The Note shall bear interest from the date
of execution thereof until maturity at the rate per annum (on
the basis of actual days elapsed over a 365 day year) of two
and one-half percent (2 1/2%) in excess of the "prime rate" of
interest announced as being in effect from day to day by Bank
of America, N.A.;
(ii) The principal of the Note shall be payable
in twenty-four (24) successive monthly installments, the first
of such installments to be due and payable on June 15, 2004,
and a like monthly installment to be due and payable on the
fifteenth (15th) day of each and every month thereafter
through and including May 15, 2006, the first twenty-three
(23) of such monthly installments each to be in the amount of
$70,833.33, and the twenty-fourth (24th) and final installment
to be in the amount of the then remaining unpaid principal
balance of the Note; each monthly principal payment 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;
(iv) The Note shall be secured by (1) a mortgage
covering the Subject Property, and (2) a collateral assignment
of all of Purchaser's right, title and interest in and to any
and all developmental permits not appurtenant to the Subject
Property, licenses, approvals, Hydrogeology Study (as defined
in Article VI of the Contract), inspection and feasibility
reports and ALTA surveys obtained or produced by Purchaser in
conjunction with the development of the project contemplated
under the Contract; both instruments to be executed and
delivered by Purchaser at the closing. The mortgage and
collateral assignment shall not be released in whole or in
part until such time as the debt evidenced by the Note is paid
to Seller in full;
(v) Both the Note and the mortgage shall provide
that upon the occurrence of a 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;
(vi) Purchaser shall pay to an escrow agent
(mutually agreed upon by the parties) on the day installment
payments are due under the Note, until the Note is paid in
full, a sum to provide for payment of amounts due for real
estate taxes and assessments which can attain priority over
the mortgage as a lien or encumbrance on the Subject Property;
(vii) The aforementioned mortgage shall contain a
standard provision for hazard and liability insurance, with
the hazard insurance limits to be no less than replacement
cost.
(viii) Both the Note and the mortgage shall
otherwise be in form and substance satisfactory to counsel for
Purchaser and counsel for Seller.
In addition to paying the purchase price for the Subject Property as
set forth hereinabove, Purchaser will also pay at closing any amounts due
pursuant to subparagraphs (a) and (b) of Article II of the Contract.
2. Notwithstanding anything to the contrary contained in the
Contract, Seller and Purchaser hereby agree that the closing of the Contract
shall occur on May 17, 2004.
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 under
seal, as of the date and year first above written.
SELLER:
FO SKI RESORTS, LLC, a Massachusetts
limited liability company
By: /S/ BRIAN H. FAIRBANK
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Brian H. Fairbank, Manager
BRODIE MOUNTAIN RESORTS, INC., a
Massachusetts business corporation
By: /S/ BRIAN H. FAIRBANK
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Brian H. Fairbank, Manager
PURCHASER:
SILVERLEAF RESORTS, INC., a Texas
corporation
By: /S/ ROBERT E. MEAD
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Name: Robert E. Mead
Its: CEO