ex10_2.htm


  
    Exhibit
10.2

     

    MODIFICATION
AND FORBEARANCE AGREEMENT

     

     

    THIS
MODIFICATION AND FORBEARANCE AGREEMENT (this “Modification”), made
and entered into this 12th day of January, 2009, by and among WILSON FAMILY COMMUNITIES, INC., a Delaware
corporation (“Borrower”), GREEN BUILDERS, INC., a Texas
Corporation formerly known as WILSON CONVERSION, INC., a
Texas corporation, successor by conversion to WILSON HOLDINGS, INC., a
Nevada corporation (“Guarantor”), and
GRAHAM MORTGAGE
CORPORATION, a Texas corporation (“Holder”);

     

    WITNESSETH:

     

    WHEREAS, Borrower executed
that certain Deed of Trust Note dated March 8, 2007, payable to the order of
Holder in the original principal amount of $4,700,000.00 (the “Note”);
and

     

    WHEREAS, payment of the Note
is secured by the lien and provisions of that certain First Lien Deed of Trust
(with Security Agreement and Assignment of Rents) dated March 8, 2007, executed
by Borrower to David G. Drumm, as Trustee for the benefit of the Holder,
recorded March 9, 2007, under County Clerk’s Number 2007042840 and re-recorded
under County Clerk’s Number 2008062743, Official Public Records of Travis
County, Texas, and of that certain Second Lien Deed of Trust (with Security
Agreement and Assignment of Rents) dated March 8, 2007, executed by Borrower to
David G. Drumm, as Trustee for the benefit of the Holder, recorded March 9,
2007, under County Clerk’s Number 2007042841, and re-recorded under County
Clerk’s Number 2008062773, Official Public Records of Travis County, Texas
(collectively, the “Deed of Trust”),
covering certain land and improvements described therein (the “Mortgaged Property”);
and

     

    WHEREAS, the payment of the
Note is guaranteed by the terms of that certain Unconditional Guaranty executed
by Guarantor dated March 8, 2007 (the “Guaranty”);
and

     

    WHEREAS, Borrower is currently
the owner of the Mortgaged Property and Holder is currently the owner and holder
of the Note, and Borrower and Holder desire to amend and modify the Note as set
forth herein;

     

    NOW, THEREFORE, for and in
consideration of the mutual covenants herein contained, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, the parties hereto do hereby agree as
follows:

     

    1.         
Borrower
agrees and stipulates that in addition to the $4,700,000 principal amount of the
Note (the “Principal
Amount”), the additional amount of $244,791.67 in accrued interest (the
“Existing
Accrual”) are payable on the Note as of December 31, 2008. Holder agrees
to defer the payment by Borrower of the Existing Accrual until the earliest to
occur of December 31, 2009, the Payment in Full of the Note, or the acceleration
of the Note pursuant to its terms as modified hereby.  “Payment in
Full of the Note” shall mean the payment by Borrower of the Principal Amount,
the Existing Accrual, the Modified Interest Payments (with interest calculated
through the date of such payment), the Additional Payment (with interest
calculated through the date of such payment) and any late charges or attorneys
fees owed pursuant to the terms of the Note.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.         
Commencing
with the interest payment due on February 1, 2009 (which shall be a payment for
interest accruing from January 1, 2009 through January 31, 2009) and ending
December 31, 2009 (which shall be a payment for interest accruing from December
1, 2009 through December 31, 2009), the interest payment due on the Note is
decreased to interest solely on the Principal Amount calculated as simple
interest at the rate of two percent (2%) per annum (the “Modified Interest
Payments”) and shall be payable monthly in arrears. In addition to such
Modified Interest Payments, an additional interest payment (the “Additional Payment”)
on the Principal Amount calculated as simple interest at a rate of twelve
percent (12%) per annum shall accrue from January 1, 2009 and shall be added to
the balance of the Note.

     

    3.         
Commencing
with February 1, 2009, Borrower shall pay to Holder on the first day of each
calendar month an amount equal to 1/12th of the
estimated ad valorem taxes to be assessed against the Mortgaged Property for the
tax year 2009 (it being acknowledged that the Borrower shall apply for the
agricultural use of the Mortgaged Property for 2009 and the estimated ad valorem
taxes shall be based on this use of the Mortgaged Property).  Holder
shall apply the amount so paid by Borrower to discharge the ad valorem taxes
assessed against the Mortgaged Property for the tax year 2009, but shall not be
required to pay Borrower any interest on such funds, and shall be entitled to
commingle such funds with other funds of Holder.  To the extent that
such funds are not sufficient to fully discharge the 2009 ad valorem taxes
assessed against the Mortgaged Property, Borrower shall be solely responsible
for the shortfall.  To the extent that such funds are in excess of the
amount required to fully discharge the 2009 ad valorem taxes assessed against
the Mortgaged Property, Holder shall apply such excess against amounts owed by
Borrower pursuant to the Note.

     

    4.         
Borrower
shall furnish Holder with a copy of all material entitlements, permits, and
other applications with regard to the Mortgaged Property promptly upon receipt
and shall take such steps as are necessary to keep all such entitlements,
permits, and other applications in effect.

     

    5.         
Borrower
shall use its commercially reasonable efforts to market the Mortgaged Property
and shall retain a broker to assist Borrower with its efforts.  At any
time that Holder believes that the Borrower is not complying with its
obligations to market the Mortgaged Property pursuant to this Section 5, Holder
shall promptly (and in any event within 10 business days) inform Borrower of
Holder’s concerns regarding the marketing of the Mortgaged Property. In the
event Borrower receives an offer for the sale of the Mortgaged Property at a
price less than sufficient for the Payment in Full of the Note, such offer shall
be communicated to Holder who, in its sole discretion, may either accept or
reject the opportunity to release its lien and enable such sale for less than
Payment in Full of the Note and will use its commercially reasonable efforts to
communicate its acceptance or rejection of the opportunity to Borrower within
five (5) business days after being informed of the offer.  If Holder
accepts such opportunity, in addition to releasing its lien, Holder shall
release any and all claim to the Mortgaged Property and all other claims the
Holder has against the Mortgaged Property, the Borrower, or the Guarantor
relating to the Mortgaged Property, so long as all proceeds of such sale (after
deducting expenses therefrom) are paid to Holder.  Such payment of
proceeds from the sale of the Mortgaged Property to the Holder shall constitute
the complete satisfaction of all amounts outstanding under the Note, all
obligations hereunder (including the obligation to pay the Existing Accrual and
the Additional Payment) and the release of the Guaranty.  Borrower
shall accept any offer that Borrower deems to be a credible offer for a purchase
which would have the effect of enabling the Borrower to make the Payment in Full
of the Note and shall not be required to submit such an offer to Holder for
acceptance or rejection and Holder shall release its lien on the Mortgaged
Property and all other claims the Holder has against the Mortgaged Property, the
Borrower or the Guarantor relating the Mortgaged Property in connection with
such sale so long as all amounts outstanding under the Note are paid to
Holder.

     

    
      
        
        

      

      
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    6.         
Upon the
execution hereof, Borrower shall deposit with Holder’s counsel, Carrington,
Coleman, Sloman & Blumenthal, L.L.P., (the “Escrow Agent”), a
Deed (in Lieu of Foreclosure) transferring the Mortgaged Property to Holder in
complete satisfaction of all amounts outstanding under the Note, all obligations
hereunder (including the obligation to pay the Existing Accrual and the
Additional Payment) and the release of the Guaranty, in escrow, with the
instruction that such Deed (in Lieu of Foreclosure) shall be held in escrow for
delivery to Holder by the Escrow Agent in the event that Payment in Full of the
Note is not made in full in accordance with this Modification on or prior to
December 31, 2009.

     

    7.         
Upon the
execution hereof, Guarantor shall deliver to Escrow Agent a duly authorized and
validly issued warrant (the “Warrant”) for the
purchase of 1.5% of the issued and outstanding shares of common stock of
Guarantor as of December 31, 2009 in the form attached as Exhibit A hereto,
that shall be exercisable beginning January 1, 2010 through December 31, 2012,
at a strike price of $5.00 per share (as adjusted for stock splits, reverse
stock splits, combinations, recapitalizations and the like with respect to such
shares).  Pursuant to the terms hereof, the Warrant will be released
from escrow upon the earlier to occur of Payment in Full of the Note in full or
the release of the Deed (in lieu of Foreclosure) from escrow.

     

    8.         
In the
event that the Mortgaged Property is not sold by December 31, 2009 and the Deed
(in Lieu of Foreclosure) is released from escrow to Holder, and provided that
all Modified Interest Payments and real estate taxes for 2009 which are due on
January 31, 2010 have been paid to Holder and the Guaranty is returned to the
Guarantor, Borrower and Holder shall exchange mutual releases in the forms
attached as Exhibit
B hereto pertaining to any and all loss, costs, or liability relating to
the Mortgaged Property or to the loan evidenced by the Note, including the
release of Guarantor on the Guaranty.

     

    9.         
In
addition to is obligation in Section 8 above,
Guarantor joins in the execution hereof for the purpose of evidencing that the
liability of Guarantor on the Guaranty shall not in any manner be diminished or
excused by the execution hereof.

     

    
      
        
        

      

      
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    10.        Except as
set forth herein, the terms and provisions of the Note and Deed of Trust shall
remain unchanged and said instruments, as modified, supplemented and amended
hereby, are hereby ratified, adopted and confirmed in all respects by Borrower
and Holder, and shall continue in full force and effect in accordance with the
terms, conditions and provisions thereof, as modified, supplemented and amended
hereby. All the rights, remedies, liens, equities and powers securing payment of
the Note, including, but not limited to the lien and provisions of the Deed of
Trust, are hereby modified, renewed and extended to secure the payment of the
Note, as extended and increased hereby. A default by Borrower in the payment or
performance of the obligations of Borrower undertaken herein shall constitute a
default pursuant to the Note and Deed of Trust, to enforce which Holder shall be
entitled to all the rights and remedies provided therein.

     

    11.        Each
party hereto hereby represents and warrants to the other party that (a) it has
the right, power, legal capacity and authority to execute and deliver this
Modification, (b) this Modification has been duly and validly executed and
delivered by such party and constitutes the valid legal and binding agreement of
such party and is enforceable against such party in accordance with its terms,
and (c) no prior approval of any person or entity is required before the
execution of this Modification by such party. Upon demand of Holder, Borrower
shall deliver to Holder any certificates, resolutions, and other evidence of the
foregoing as Holder shall request.

     

    12.        Borrower,
on behalf of Borrower and Borrower’s successors and assigns,
does  hereby forever release and discharge Holder and any and all
officers, directors, agents, employees, shareholders, attorneys, successors and
assigns of Holder and all entities owned by or affiliated with Holder (herein
collectively referred to as “Releasees”) of and from any and all claims,
demands, offsets, damages, obligations, causes of action, losses or expenses of
whatever nature or type, whether known or unknown, choate or inchoate, suspected
or unsuspected, or whether having arisen, accrued or matured or hereafter to
arise, accrue or mature (collectively, “Claims”) that
Borrower may now or hereafter have against the Releasees, or any of them,
arising out of any matter or event occurring on or prior to the date of
execution hereof with respect to the Note, the Deed of Trust or the Borrower
described therein, including, but not limited to, any claims related to the
making of the Note, the administration of the Note, or the enforcement or
restructuring of the Note or the Deed of Trust.

     

    13.        All
rights, remedies, equities, and powers securing payment of the Note, including
but not limited to, the lien and provisions of the Deed of Trust are hereby
MODIFIED, RENEWED, AND EXTENDED to secure payment of the Note as extended
hereby. Except as modified hereby or inconsistent with the terms hereof, all
terms of the Note shall remain in full force and effect.

     

    14.        Each
party hereto shall execute such documents and perform such further acts as may
be reasonably required or desirable to carry out or to perform the provisions of
this Modification.

     

    15.        The
parties hereto acknowledge and agree that in the event of any breach of this
Modification, the non-breaching parties would be in irreparably harmed and could
not be made whole by monetary damages.  It is accordingly agreed that
the parties hereto shall and do hereby waive the defense in any action for
specific performance that a remedy at law would be adequate and that the parties
hereto shall be entitled to compel specific performance of this Modification as
the sole remedy to which the parties shall be entitled.

     

    
      
        
        

      

      
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    16.        THIS
MODIFICATION, THE NOTE, AND THE DEED OF TRUST, REPRESENT THE FINAL AGREEMENTS
BETWEEN BORROWER AND HOLDER RELATING TO THE MATTERS SET FORTH HEREIN, AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.

     

    


     

    [Signature
Page to Follow]

     

     

     

     

    
 

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, this Modification has been executed this 12th day of January,
2009.

    
       

      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      	 
      	
                                              WILSON
      FAMILY COMMUNITIES, INC.,

                                            
	 
      	
                                              a
      Delaware corporation

                                            
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                                              By:    
      

                                            	
                                              /s/
      Clark Wilson

                                            	 
      
	 
      	
                                              Name:

                                            	
                                              Clark
      Wilson

                                            	 
      
	 
      	
                                              Title:

                                            	
                                              President
      and CEO

                                            	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 	

                                              GREEN BUILDERS, INC., a
      Texas corporation formerly known as Wilson Conversion, Inc., a Texas
      corporation, successor by conversion to WILSON HOLDINGS, INC., a Nevada
      corporation

                                            	 
	 	 
	 	 
	 	 
	 
      	
                                              By:

                                            	
                                              /s/
      Clark Wilson

                                            	 
      
	 
      	
                                              Name:

                                            	
                                              Clark
      Wilson

                                            	 
      
	 
      	
                                              Title:

                                            	
                                              President
      and CEO

                                            	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                                              GRAHAM
      MORTGAGE CORPORATION,

                                            
	 
      	
                                              a
      Texas corporation

                                            
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	
                                              By:

                                            	
                                              Joe
      M. Graham

                                            	 
      
	 
      	
                                              Name:

                                            	
                                              Joe
      M. Graham

                                            	 
      
	 
      	
                                              Title:

                                            	
                                              President

                                            	 
      


                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

         

        
          
            
            

          

          
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    EXHIBIT
A

     

     

    WARRANT
TO PURCHASE COMMON STOCK

    
       

       

       

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

    

     

    EXHIBIT
B

     

     

    FORMS
OF RELEASE