Ex. 10.6
THIRD AMENDMENT TO CONTRACT OF SALE
This Third Amendment to Contract of Sale is made and entered into as of
the 14th day of May, 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, and a Second Amendment to Contract of Seller dated March 17, 2004,
Seller and Purchaser have 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 further modify the terms and
conditions of the Contract pertaining to the deadline for closing of the
Contract in order to provide Purchaser with additional time to seek a variance
from the Massachusetts Department of Public Safety Architectural Access Board
provisions which require an elevator in three story buildings (the "Variance");
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 closing of the Contract
shall occur either (i) on July 16, 2004, or (ii) within ten (10) days following
the date on which Purchaser obtains the Variance, whichever occurs earlier.
2. As consideration for the extension of the deadline for closing
of the Contract as set forth herein, upon execution of this Third Amendment, the
Seller and Purchaser covenant as follows:
a. Purchaser shall deliver to Seller an additional Fifty Thousand
Dollars ($50,000.00) in earnest money. The additional $50,000
earnest money deposit
that must be made by Purchaser in order to extend the deadline
for closing of the Contract as set forth herein shall be
non-refundable to Purchaser except in the event of a default
by Seller under the Contract, but, if the Contract closes,
shall be applied in partial satisfaction of the purchase price
payable under the Contract.
b. At closing, Purchaser shall engage the Seller in an operating
agreement for the operation of the Property for a term to
commence on the date of closing (as determined in Section 1
above) and terminating on April 1, 2005 (Operating
Agreement"), unless sooner terminated or extended by mutual
agreement of the Seller and Purchaser. The Operating Agreement
shall contain, but not be limited to, the following terms and
conditions:
i. Purchaser shall be responsible for (A) property and
liability insurance covering the Property with the
Seller named as an additional insured; (B) real
estate taxes; (C) management fee to Jiminy Peak, Inc.
of $4,000.00 per month; (D) any necessary repairs to
the Property in excess of $500.00 per repair (which
repairs Seller shall submit to Purchaser for prior
review and approval); (E) damage repair caused by
force majeure (ex. storm damage).
ii. Seller shall have the following rights and
responsibilities under the Operating Agreement during
the term thereof:
A. Right and obligation to operate the lodging,
camping, tubing and food service activities
on the Property and the right to all of the
income stream from such activities;
B. The responsibility for obtaining and
maintaining all necessary permits and
approvals for the operation of the
activities set forth in Section 2.b.ii.A;
C. Obligation of maintaining general upkeep of
the Property to include water system
maintenance and operation, lawn mowing, and
snow removal;
D. The obligation for necessary repairs to the
Property less than $500.00 per repair;
E. The responsibility for all utility costs
associated with the Property (ex. electric,
propane and telephone);
F. The right to all reimbursements from Tower
Ventures II, LLC ("TV II") for electrical
service to the TV II cellular facility
towers on the Property;
G. The right to all income from the TV II
cellular facility towers pursuant to the
Perpetual Easement and License Agreement to
Tower Ventures, Inc., dated February 13,
2001, as may be amended from time to time;
H. Responsibility for maintaining liability
insurance covering the Seller's activities
on the Property with the Purchaser named as
an additional insured;
I. The right to use any and all of Purchaser's
equipment located on and associated with the
Property.
c. Purchaser agrees that in the event of a termination of the
Contract by Purchaser for any reason other than for default of
Seller, Purchaser shall (a) assign and convey over to Seller
all of Purchaser's right, title and interest in and to any and
all developmental and operating permits, licenses, approvals,
authorizations, Hydro geology Study (as defined in Article VI
of the Contract) and ALTA surveys obtained or produced by
Purchaser in conjunction with the development of the project
contemplated under the Contract, including, but not limited
to, any and all applications for same, and (b) provide Seller
with complete copies of all development products produced or
obtained by Purchaser in conjunction with the development of
the project contemplated under the Contract, including, but
not limited to, title abstracts and reports, title
commitments, development plans, site plans, engineering
studies and plans, utility plans, soil tests, and
environmental tests.
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
---------------------------
Brian H. Fairbank, Manager
BRODIE MOUNTAIN RESORTS, INC., a
Massachusetts business corporation
By: /S/ BRIAN H. FAIRBANK
---------------------------
Brian H. Fairbank, Manager
PURCHASER:
SILVERLEAF RESORTS, INC., a Texas
corporation
By: /S/ ROBERT E. MEAD
---------------------------
Name: Robert E. Mead
Its: CEO