EXHIBIT 10.3
THIRD AMENDMENT TO AGREEMENT
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THIS THIRD AMENDMENT TO AGREEMENT (the "Third Amendment") made as of
the 4th day of October, 2004 by and between by and between XXXXXXXX-XXXXX
INDUSTRIES, INC., a Delaware corporation, ("Xxxxxxxx") and THACKERAY
CORPORATION, a Delaware corporation ("Thackeray") (Xxxxxxxx and Xxxxxxxxx
sometimes individually referred to as a "Seller" and sometimes collectively
referred to as the "Sellers") and EST ORLANDO, LTD. a Florida limited
partnership ("Buyer");
W I T N E S S E T H
WHEREAS, Seller and Buyer entered into an Agreement For Purchase and
Sale with an Effective Date of July 23, 2004 and amended the same by a Amendment
to Agreement (the "First Amendment") made as of September 1, 2004 and by a
Second Amendment to Agreement (the "Second Amendment") made as of September 14,
2004 (collectively, the "Agreement"); and
WHEREAS, Seller and Buyer are desirous of further amending the
Agreement in certain respects.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, the parties hereto agree
that the Agreement is further amended as follows:
1. Definitions. Any capitalized terms in this Third Amendment not
defined herein, shall have the meaning ascribed thereto in the Agreement.
2. Closing Date. Section 3.1 of the Agreement is modified to read, in
its entirety, as follows: "The purchase and sale of the Assets shall be
completed through a closing which shall occur at the offices of the Sellers'
attorney on a date (the "Closing" or "Closing Date") which is the later of (x)
five (5) Business Days after receipt of the "Shareholder Approval" as defined in
Section 5.2(h) herein and (y) if Buyer does not terminate the Agreement on or
before December 23, 2004 as permitted in Section 4.1 of the Agreement , as
modified herein, due to a failure to obtain the "Lender Approvals" as defined in
Section 5.1(e) herein, five (5) Business Days after the earlier of the receipt
of such Lender Approvals and December 23, 2004; provided however, in no event
shall the Closing be later than December 31, 2004 unless Seller does not have
the Shareholder Approval by December 20, 2004 due to delays related to
compliance with SEC requirements pertaining to said approval and elects, by
written notice to Buyer, on or before December 23, 2004, to extend the December
31, 2004 date until the earlier of five (5) business days after receipt of such
Shareholder Approval and February 27, 2005. Seller will file the proxies for
Shareholder Approval with the SEC by October 31, 2004."
3. Modification of Section 4.1. Section 4.1 of the Agreement as
previously modified is further modified to delete "on the 4th day of October,
2004" and to substitute, in lieu thereof, "on December 23, 2004".
4. Counterparts/Signature by Facsimile. This Third Amendment may be
executed in multiple counterparts with any counterpart or grouping of
counterparts containing the signatures of all parties to constitute a whole and
an original of this Third Amendment and a facsimile signature shall be deemed an
original.
IN WITNESS WHEREOF, the parties have executed this Third Amendment as
of the date first set forth above.
SELLERS:
XXXXXXXX-XXXXX INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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THACKERAY CORPORATION, a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxxxxx
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BUYER:
EST ORLANDO, LTD., a Florida limited
partnership
By: EST ORLANDO CORPORATION, a Florida
corporation, its general partner
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
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