THIRD AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL PROPERTY
THIRD
AMENDMENT TO CONTRACT FOR PURCHASE
AND SALE OF REAL
PROPERTY
This
Third Amendment to Contract for Purchase and Sale of Real Property (the "Third
Amendment") is made and entered into as of the 30th day of
December, 2008, by and between RICHWOOD, INC., a Florida corporation
(“Richwood”) and The McClatchy Company, a Delaware corporation
(“McClatchy”, and together with Richwood, hereinafter collectively referred to
as the "Seller"), and CITISQUARE GROUP, LLC, a Florida
limited liability company (the "Buyer").
W
I T N E S S E T H:
WHEREAS, Richwood, Miami
Herald Publishing Company, a Florida corporation (“MHPC”) and Xxxxxx-Xxxxxx,
Inc., a Florida corporation (collectively, the “Original Sellers”), and Buyer
entered into that certain Contract for Purchase and Sale of Real Property
effective as of March 3, 2005 as amended by that certain First Amendment (the
"First Amendment") dated August 10, 2007 and as further amended by that certain
Second Amendment (the “Second Amendment”) dated December 20, 2007 (said contract
as modified by the First Amendment and the Second Amendment being herein called
the “ Existing Contract”, and as further modified by this Third Amendment being
herein called the “Amended Contract”) pursuant to which Original Sellers agreed
to sell to Buyer and Buyer agreed to buy from Original Sellers certain real
estate located in Miami-Dade County, Florida as more particularly described
therein (the “Herald Property”); and
WHEREAS, Buyer and Seller have
agreed to modify certain provisions of the Existing Contract on the terms and
conditions set forth herein.
NOW THEREFORE, in
consideration of Ten Dollars ($10.00) and the mutual promises contained herein,
the receipt, sufficiency and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
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1.
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Recitals.
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The
above recitals are true and correct and incorporated herein by reference
as if set forth in full.
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2.
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Capitalized
Terms.
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Any
capitalized terms herein and not otherwise defined shall have the same
meanings as described to them in the Existing
Contract.
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3.
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Seller. Any
reference to Sellers in the Existing Contract shall now only refer to
Richwood and McClatchy.
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4.
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Closing
Date. Section 1.2 of the Existing Contract is
hereby deleted in its entirety, and in lieu thereof, shall be replaced
with the following:
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“The
Closing Date shall be June 30, 2009, or such other date provided by this
Contract.”
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5.
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Termination
of Right of First Refusal. Section
22.24 of the Existing Contract is hereby deleted in its entirety and Buyer
shall no longer have a right of first refusal with regard to the Miami
Herald Building Site.
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6.
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Extension
of Closing Date. Buyer may, by written notice to Seller
ten (10) days prior to the Closing Date, elect to extend the Closing Date
until no later than December 31, 2009. If Buyer elects to
extend the Closing Date, Section 6 of the Second Amendment shall be
deleted in its entirety, and in lieu thereof, shall be replaced with the
following:
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“Xxxx
Xxxxxx (“Siffin”), who is a principal of one of the development groups
affiliated with Buyer, by his signature below, agrees that in the event
Buyer fails to close on the purchase of the Property on or before December
31, 2009, by reason of Buyer’s default under the Contract, Siffin shall
pay Seller a termination fee of Six Million Dollars ($6,000,000.00) (the
“Termination Fee”) within ten (10) days following such failure to
close.”
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This
amendment to Section 6 of the Second Amendment shall be self-operative and
no further agreements or instruments shall be required to be executed and
delivered by the parties to evidence the
same.
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7.
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Financial
Statements. In the event Buyer elects to extend the
Closing Date pursuant to Paragraph 6 above, then ten (10) days prior to
the Closing Date, Siffin shall provide Seller with copies of his most
recent financial statements providing evidence, to Seller’s reasonable
satisfaction, that Siffin has sufficient net funds or net assets to
satisfy his obligation to pay the Termination Fee. If Siffin
shall fail to timely provide such evidence, then the Closing Date shall
not be extended past June 30, 2009.Seller agrees that the contents of such
financial statements shall remain confidential and the sole purpose of
providing such financial statements is to confirm Siffin’s ability to pay
the Termination Fee in the event payment is required pursuant to the
Amended Contract.
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8.
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Parking
Easement and Parking Lease.
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a. Section
III of the form Parking Easement attached as Exhibit “H” to the First Amendment
shall be deleted in its entirety and replaced with the following in its
stead:
“Grantor
hereby grants to Grantee, for the use and benefit of Grantee, its employees,
customers, invitees, Permitted Tenants (as hereinafter defined) of the Herald
Property (and any employees, customers or invitees of such Permitted Tenants)
and in the event of a transfer or lease of the Herald Property together with the
business operating thereon (a “Successor Operator”), to such Successor Operator,
and its employees, customers, and invitees, an access easement for (i) vehicular
and pedestrian ingress and egress and (ii) the parking of automobiles and other
standard sized vehicles on, over, across and through the Easement
Area. As used herein, the term “Permitted Tenant” shall mean any
tenant permitted by Grantee to lease space at the Herald Property, and then in
occupancy of such space, at the Herald Property in accordance with the terms and
conditions contained herein, including, without limitation, Section VI
hereof. Notwithstanding the foregoing, Permitted Tenant shall be
permitted to change the use of any space occupied by such Permitted Tenant at
the Herald Property, so long as the use of at least 51% of the total
improvements located on the Herald Property remains unchanged and so long as no
portion of the improvements is being used for retail purposes (other than retail
purposes ancillary to the current use of the improvements).”
b. Section
1.05 of the Form of Parking Lease attached as Exhibit “I” to the First Amendment
shall be deleted in its entirety and replaced with the following language in its
stead:
“The
Parking Spaces or the Leased Premises shall be used exclusively by Tenant, its
employees, customers, invitees, Permitted Tenants (as hereinafter defined) of
the Herald Property (and any employees, customers or invitees of such Permitted
Tenants), and in the event of a transfer or lease of the Herald Property by
Tenant, together with the business operating thereon (a “Successor Operator”) by
such Successor Operator and its employees, customers and invitees. As
used herein, the term “Permitted Tenant” shall mean any tenant permitted by
Tenant to lease space, and then in occupancy of such space, at the Herald
Property in accordance with the terms and conditions contained herein,
including, without limitation, Section 2.02 hereof. Notwithstanding
the foregoing, Permitted Tenant shall be permitted to change the use of any
space occupied by such Permitted Tenant at the Herald Property, so long as the
use of at least 51% of the total improvements located on the Herald Property
remains unchanged and so long as no portion of the improvements is being used
for retail purposes (other than retail purposes ancillary to the current use of
the improvements).”
c. Section
7.01 of the form of Parking Lease attached as Exhibit “I” to the First Amendment
shall be deleted in its entirety and replaced with the following language in its
stead:
“Except
as provided in Section 1.05, Tenant shall not assign, sublease, mortgage or
transfer this Lease. Notwithstanding the foregoing, however, Tenant
shall have the right to sublease to any Permitted Tenant (and any employees,
customers or invitees of such Permitted Tenant) of the Herald Property, or allow
any Permitted Tenant (and any employees, customers or invitees of such Permitted
Tenant) of the Herald Property to use or occupy, a percentage of the Parking
Spaces without the written consent of Landlord, so long as any rights given to
Permitted Tenant shall be no greater than the rights granted to Tenant under
this Lease.”
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9.
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Claim
of Lien. Seller
has been provided notice as of October 10, 2008 that a claim of lien had
been filed against all or a portion of the Property by Xxxxxx Xxxx, Inc.
in the Official Records of Miami-Dade County, Florida (the “Claim of
Lien”), a copy of which is attached hereto as Exhibit “A”. This
Claim of Lien reflects amounts allegedly owed to Xxxxxx Xxxx, Inc. for
architectural services provided pursuant to a contract with Maefield
Development and Maefield Holdings, LLC, for a total value of approximately
$406,009.68 of which over $400,000 remains unpaid. Buyer hereby
agrees to diligently contest the Claim of Lien and have the same
discharged of record. In the event the Closing does not occur
as provided herein, Buyer shall be obligated to discharge such Claim of
Lien prior to termination of the Amended
Contract.
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10.
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Time
of the Essence. Time is of the essence of the Amended
Contract.
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11.
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No
Breach of Contract. Each of Buyer and Seller
acknowledges and agrees that as of the date hereof, it is not aware of any
breach of the Amended Contract by the other party, and all notices between
the parties and their respective counsel exchanged from and after December
1, 2007, including any claims of breach, through and including the date
hereof are hereby withdrawn and are of no force or
effect.
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12.
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Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
be deemed to be an original, but all of which shall constitute one and the
same instrument.
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13.
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Ratification. Except
as modified hereby, the Existing Contract is hereby ratified and
confirmed.
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[NO
FURTHER TEXT ON THIS PAGE]
IN WITNESS WHEREOF, this Third
Amendment to Contract is entered into as of the date first appearing
above.
BUYER:
CITISQUARE
GROUP, LLC, a Florida limited liability company
By: /s/Xxxxx
X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title: President
SELLER:
RICHWOOD,
INC., a Florida corporation
By: /s/Xxxxxx
Xxxxxx-Xxxxxx
Name:
Xxxxxx Xxxxxx-Xxxxxx
Title: Secretary
THE
McCLATCHY COMPANY., a Delaware corporation
By: /s/Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title: COB, President &
CEO
SIFFIN (solely
for purpose of confirming his obligations under Paragraph 6 above):
By:/s/Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx, an individual
