SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
EXHIBIT
10.3
SECOND
AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment") is entered as
of the 19th day of
March, 2009, by and between FAIRFAX MEDICAL CENTER, LLC, a Virginia limited
liability company ("Seller") and GYRODYNE COMPANY OF AMERICA, INC., a New York
corporation ("Purchaser").
RECITALS:
WHEREAS,
Seller and Purchaser entered into a Purchase and Sale Agreement bearing an
original effective date of January 2, 2009 (the "Original Agreement"), as
amended by that certain First Amendment to Purchase and Sale Agreement, dated
February 16, 2009, for the purpose of correcting the effective date of the
Original Agreement to February 2, 2009 (the "First Amendment") (the Original
Agreement and the First Amendment collectively referred to as the "Agreement")
whereby, subject to the terms and conditions contained in the Agreement, Seller
agreed to sell and Purchaser agreed to purchase that certain real property and
all buildings and improvements located thereon and having a street address of
00000 Xxxx Xxxxxx, Xxxxxxx, Xxxxxxx Xxxx, Xxxxxxxx (hereinafter the "Property");
and
WHEREAS,
Purchaser and Seller have agreed to amend the Agreement to reduce the Purchase
Price and to reflect additional terms negotiated between the parties during the
Due Diligence Period.
NOW,
THEREFORE, in consideration of the mutual covenants as set forth herein, and of
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree and covenant as follows:
1. The
recitals set forth above are hereby incorporated as essential terms of this
Amendment. Capitalized terms shall have the meaning ascribed to them in the
Agreement, unless otherwise defined herein.
2. Section
2.1 of the Original Agreement is hereby deleted in its entirety, and the
following is substituted in its place and stead:
2.1.
Purchase
Price. The Purchase Price for the Property (the "Purchase Price" is
Twelve Million Eight Hundred Ninety-one Thousand and No/100 Dollars
($12,891,000.00). The parties acknowledge that, except for prorations and
adjustments to the
Purchase Price made at Closing pursuant to the terms of the Original
Agreement, the Purchase Price set forth in this Amendment shall be the final
agreed consideration for the purchase of the Property. The parties further
acknowledge that the Purchase Price set forth in this Amendment includes the
reduction for ACM Remediation Cost provided in Section 2.5 of the Original
Agreement.
3. The
first sentence of Section 2.4 of the Original Agreement is hereby deleted in
its
entirety, and the following is substituted in its place and
stead:
Recordation
of the Deed (as hereinafter defined), payment of the Purchase Price and the
closing hereunder (the "Closing") will take place pursuant to an escrow closing
on or about April 10, 2009, or a date mutually selected by Purchaser and Seller
(the "Closing Date") but in no event later than April 30, 2009 (the "Outside
Date").
4. The
parties acknowledge that the following units do not have the requisite occupancy
or non-residential use permits: Unit 203 (Xxxxxx); Xxxx X-0 (Good Day
Chiropractic Health Clinic, PC); Unit 105 (Fairfax Medical Center Opticians,
Inc.); Unit 1100 (Xxxxx X. Xxxxxx, MD); Xxxx 0000 (Xxxxxx & Associates,
LLC); and Xxxx 0000 (Xx. Xxxxxx Xxxx). Seller shall exercise its best efforts to
induce the tenants of said units to file applications with the City of Fairfax
Zoning Office for the necessary occupancy permits or non-residential use
permits. Said applications shall be filed before Closing. Purchaser waives the
foregoing requirement with respect to Unit 203 (Xxxxxx). Except for the Seller's
obligation to procure the timely filing of said applications, Purchaser hereby
waives any and all claims regarding the occupancy permits or non-residential use
permits for tenant premises within the Building.
5. Seller
hereby confirms that it waives any claims for recoupment for the 2006 and 2007
operating expenses of the Property from any and all tenants of the
Building.
6. Seller
withdraws Exhibit 5.1.16 (Rent Roll) attached to the Original Agreement and
submits New Exhibit 5.1.16 (Rent Roll), which is attached hereto and
incorporated herein by this reference. Seller re-certifies all statements,
representations and warranties set forth in the Original Agreement as such
statements, representations and warranties pertain to New Exhibit
5.1.16.
7. The
Deed, which is attached to the Original Agreement as Exhibit 8.1.1 is hereby
deleted, and a new Deed, attached hereto as New Exhibit 8.1.1, is substituted in
its place and stead.
8. The
Assignment of Leases, which is attached to the Original Agreement as Exhibit
8.1.3 is hereby deleted, and a new Assignment of Leases, attached hereto as New
Exhibit 8.1.3, is substituted in its place and stead.
9. The
Assignment of Contracts, which is attached to the Original Agreement as Exhibit
8.1.4 is hereby deleted, and a new Assignment of Leases, attached hereto as New
Exhibit 8.1.4, is substituted in its place and stead.
10. The
Assignment of Warranties, which is attached to the Original Agreement as Exhibit
8.1.5 is hereby deleted, and a new Assignment of Warranties, attached hereto as
New Exhibit 8.1.5, is substituted in its place and stead.
11. The
terms of the Agreement not otherwise affected by this Amendment remain in full
force and effect and are incorporated by reference as if fully set forth
herein.
-2-
12. This
Amendment is binding upon and shall inure to the benefit of the parties hereto
and to their respective heirs, employees, agents, partners, affiliates,
independent contractors, affiliated entities, successors, assigns, and
attorneys.
13. This
Amendment may be executed simultaneously in one or more counterparts and
delivered by facsimile or other electronic means, each of which shall be deemed
an original and all of which together shall constitute one and the same
instrument.
<
SIGNATURE PAGES FOLLOW >
-3-
IN
WITNESS WHEREOF, the Seller has executed this Second Amendment to Purchase and
Sale Agreement on the date set forth below and effective as of the date first
above-written.
SELLER:
FAIRFAX MEDICAL CENTER,
LLC,
a
Virginia limited liability company
/s/
Xxxx Son Xxxxx [SEAL]
By: Xxxx Son Xxxxx,
Managing Member
Date:
3/18 09
-4-
IN
WITNESS WHEREOF, the Purchaser has executed this Second Amendment to Purchase
and Sale Agreement on the date set forth below and effective as of the date
first above-written.
PURCHASER:
GYRODYNE COMPANY OF
AMERICA, INC.,
a New
York corporation
/s/
Xxxxx Xxxxxxxxx [SEAL]
By: Xxxxx
Xxxxxxxxx, Chief Operating Officer
Date:
MARCH 18, 2009
-5-
