FIRST AMENDMENT TO CONTRACT FOR PURCHASE AND SALE OF REAL PROPERTY
FIRST
AMENDMENT TO CONTRACT FOR PURCHASE
AND
SALE OF REAL PROPERTY
This
First Amendment to Contract for Purchase and Sale of Real Property (the "First
Amendment") is made and entered into as of the 10th day of August, 2007, 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 (the “ Existing Contract”, as modified by this First Amendment being herein called, the “Amended Contract”) pursuant to which Original Seller agreed to sell to Buyer and Buyer agreed to buy from Original Seller certain real estate located in Miami-Dade County, Florida as more particularly described therein (the “Herald Property”); and
WHEREAS,
following the Effective Date of the Existing Contract, Original Sellers
represented and warranted to Buyer that the Miami Herald Publishing Company
did
not own any of the Herald Property but in fact Xxxxxx-Xxxxxx, Inc. actually
owned, together with other portions of the Herald Property, all the Herald
Property which previously was thought to be owned by the Miami Herald Publishing
company, less that certain portion of the Herald Property owned by
Richwood. As a result thereof, Miami Herald Publishing Company is no
longer an owner or seller of the Herald Property.
WHEREAS,
on June 27, 2006, Articles of Merger were filed between The McClatchy Company
and Xxxxxx-Xxxxxx, Inc., which effectuated a merger between the two companies,
wherein Xxxxxx-Xxxxxx, Inc. merged with and into McClatchy, resulting with
McClatchy as the surviving corporation.
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
deleted in its entirety, and in lieu thereof, shall be replaced with
the
following:
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“The
Closing shall be December 31, 2008, or such other date as provided
by this
Contract”.
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5.
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Release
of Deposit. The following shall be added to
Section 3.1 of the Existing
Contract:
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“Notwithstanding
the foregoing, immediately upon execution of this First Amendment by Seller
and
Buyer, Escrow Agent shall disburse the Deposit (exclusive of interest) to the
Seller. The Escrow Agent shall also disburse all interest earned on
the Deposit up until the time of such disbursement to the Buyer. Upon
making such payments, the Escrow Agent shall be released of any and all
liability with respect to the holding of the Deposit. Notwithstanding
the release of the Deposit to Seller, the full amount thereof shall remain
a
credit against the Purchase Price and Buyer’s “Cash to Close” under the Amended
Contract to the same extent as if it had remained in escrow with Escrow Agent
pursuant to the terms of the Existing Contract. In addition, Seller
shall have an obligation to return such Deposit to Buyer in the event of a
termination of the Amended Contract under the same circumstances under which
Escrow Agent would have been directed or obligated to return such Deposit to
Buyer under the terms of the Amended Contract had the Deposit remained in escrow
as originally provided.”
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6.
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Additional
Deposits. The following shall be added as Section
3.1.1 to the Contract:
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“Additional
Deposits: Buyer shall pay to Seller five (5) additional deposits
(each an “Additional Deposit”), all of which, if the Buyer should perform its
obligations under the Contract and close on the purchase of the Property, shall
be credited against the Purchase Price at Closing and Buyer’s required “Cash to
Close” under the Amended Contract to the same extent as if said monies had been
deposited or remained in escrow, as applicable, with Escrow Agent pursuant
to
the terms of the Existing Contract. In addition, Seller shall have an obligation
to return all such Additional Deposits so made, together with the Deposit,
to
Buyer in the event of a termination of the Amended Contract under the same
circumstances under which Escrow Agent would have been directed to return the
Deposit to Buyer under the terms of the Amended Contract had such Deposit
remained in escrow as originally provided. The Additional Deposits shall be
paid
to Seller on the following dates and in the following amounts, provided Seller
is not in breach in any material respect of its obligations under the terms
of
the Amended Contract, and is not the subject of any so-called bankruptcy or
insolvency proceeding under state or federal insolvency laws:
| on or before 5:00pm EDT on October 1, 2007: | $5,000,000.00 |
| on or before 5:00pm EDT on January 1, 2008: | $5,000,000.00 |
| on or before 5:00pm EDT on April 1, 2008: | $5,000,000.00 |
| on or before 5:00pm EDT on July 1, 2008: | $5,000,000.00 |
| on or before 5:00pm EDT on October 1, 2008: | $5,000,000.00 |
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Notwithstanding the foregoing, Buyer may, at its election, upon written notice (“Deferral Notice”) to Seller prior to October 1, 2007, postpone the payment of the Additional Deposit due on October 1, 2007 (the “First Additional Deposit”) to a date on or before December 1, 2007, (“Deferral Date”), which such Deferral Date shall be specified in the Deferral Notice; provided, that Buyer shall pay to Seller on the Deferral Date such First Additional Deposit together with interest thereon at a rate of 10% per annum which shall have accrued from October 1, 2007 to the Deferral Date; and provided further, that Buyer may, at any time prior to the Deferral Date specified in the Deferral Notice, upon not less than one Business Day notice to Seller, pay to Seller the First Additional Deposit together with interest thereon at a rate of 10% per annum which shall have accrued from October 1, 2007 to the date Seller makes such payment.
It
shall
be a default of Buyer under the Amended Contract if Buyer shall fail to pay
any
Additional Deposit when due and such default shall continue for two (2) Business
Days after written notice of such default is given by Seller to Buyer (an “Event
of Default”). Upon such Event of Default, Seller may elect to
terminate the Amended Contract and retain all deposits that have been previously
paid to Seller as liquidated damages, both Buyer and Seller acknowledging that
the Additional Deposits that have been paid to Seller most closely approximate
the amount necessary to compensate Seller in the event of such Event of
Default. Buyer and Seller agree that this is a bona fide liquidated
damages provision and not a penalty or forfeiture provision.
Buyer
acknowledges that the Additional Deposits are being paid directly to Seller,
and
may be commingled with other funds of Seller. At no time shall the Additional
Deposits be placed in escrow and therefore, there shall be no interest accruing
at any time on any or all of the Additional Deposits.”
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7.
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Acceleration
of Closing Date. Buyer may, upon 10 days
prior written notice to Seller, elect to close on the purchase of
the
Herald Property prior to the Closing Date. In the event Buyer
closes on or before June 30, 2008, Buyer shall receive a reduction
in the
Purchase Price in an amount equal to Ten Million and 00/100 Dollars
($10,000,000.00) such that the Purchase Price payable under the Contract
shall be One Hundred Eighty Million Dollars ($180,000,000) (the “180
Million Dollar Price”); as such date may be extended by reason of Seller
adjourning the Closing in accordance with the terms of the Amended
Contract, or Seller failing to satisfy the conditions to Closing
as or
before such date, or Seller defaulting on its obligation to close
on or
before such date in which event the 180 Million Dollar Price shall
still
apply. In the event Buyer closes on or before September 30, 2008,
Buyer
shall receive a reduction in the Purchase Price in amount equal to
Five
Million and 00/100 Dollars ($5,000,000.00) such that the Purchase
Price
payable under the Contract shall be One Hundred Eighty-Five Million
Dollars ($185,000,000) (the “185 Million Dollar Price”); as such date may
be extended by reason of Seller adjourning the Closing in accordance
with
the terms of the Amended Contract, or Seller failing to satisfy the
conditions to Closing as or before such date, or Seller defaulting
on its
obligation to close on or before such date in which event the 185
Million
Dollar Price shall still apply.
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8.
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Condition
of Property. Buyer acknowledges that, to the best
of its knowledge, as of the date hereof, and except with respect
to the
Environmental Condition, (which is addressed in Section 13 herein),
Seller
is not in breach of the Existing Contract, and if Closing were to
occur at
this time, Buyer would have no basis upon which to declare Seller
in
breach of the Existing Contract or upon which to direct Escrow Agent
to
return the Deposit to Buyer. Seller acknowledges that, to the
best of its knowledge, Buyer is not in breach of the Existing Contract,
and if the Closing were to occur at this time, Seller would have
no basis
upon which to declare Buyer in breach of the Existing Contract or
upon
which to direct Escrow Agent to pay the Deposit to
Seller.
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9.
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Truck
Staging. Section 1.5 of the Existing Contract
(“Easements”) is hereby modified by deleting the following
language:
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(i) an
easement to be granted by Buyer to Seller over a portion of the Land
described as “Lot C”, and a portion of the Land commonly known as N.E.
14th
Street, in favor of Seller for the use of its trucks and heavy equipment
for access, ingress and egress, and the staging of trucks for pickup
and
delivery of materials (the “Truck
Easement”)
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and
replacing such language in its stead with the following:
(i) an
easement to be granted by Buyer to Seller over a portion of the Land as
described on Exhibit “A” hereto, in favor of Seller for
the use of its trucks and heavy equipment for access, ingress and egress, and
the staging of trucks for pickup and delivery of material (the “Truck
Easement”)
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10.
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Parking. Section
1.5 of the Existing Contract (“Easements”) is hereby
modified by deleting the following
language:
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(ii)
an easement to be granted by Buyer to Seller for the purpose of parking up
to a
maximum amount of 740 vehicles, both in a location or locations on the Land
to
be designated by Buyer and reasonably approved by Seller, as Buyer formulated
its development plans for the Land (the “Parking Easement”); provided, however,
that upon completion of the construction of all of the improvements on the
Land,
Purchaser agrees to provide a minimum of 100 parking spaces on that portion
of
the Land known as Lot A, which is immediately adjacent and proximate to the
front lobby entrance of the Herald Office Building (the “Parking
Easement”).
and
replacing such language in its stead with the following:
(ii)
a
perpetual easement in the form attached hereto as Exhibit
“H” (“Parking Easement”) or, in lieu thereof, at Buyer’s election,
a 99 year lease to be granted by Buyer to Seller in the form attached hereto
as
“Exhibit I” (“Parking Lease”); provided, however, that
if parking on a Permitted Alternative Site (as hereinafter defined) is in place
at the Closing, such Parking Easement or Parking Lease shall become effective
at
Closing, but the term shall commence upon the Parking Structure Completion
Date
(as defined in the Parking Easement or Parking Lease) and such Parking Easement
or Parking Lease shall be recorded at Closing. With respect to the
Permitted Alternative Site, if Buyer does not own the property on which the
off-site parking is located, Buyer shall execute a license, easement, lease
or
other instrument with the third-party operator or owner (and as to which Seller
shall be a third party beneficiary) which shall be binding on successors and
assigns and which will provide for Seller’s use of the Parking Spaces
(as defined in the Parking Easement or Parking Lease), which may be
undesignated to the extent provided in the Parking Easement or Parking Lease,
as
applicable, for the period reasonably estimated by Buyer until the Parking
Structure Completion Date or for such lesser period of time provided that Buyer
provides reasonable evidence to Seller of the availability of other
sites to replace such Parking Spaces upon the expiration of such license,
easement, lease or other instrument. In addition to those sites
identified on the respective schedules to the Parking Easement and Parking
Lease
as Permitted Alternative Sites (which Seller acknowledges and agrees are
permitted locations for off-site parking), Buyer shall have the right at any
time prior to the Parking Structure Completion Date to designate additional
alternative sites as Permitted Alternative Sites, which shall be deemed
acceptable to Seller if Seller does not object to same within thirty (30) days
after notice of such proposed Permitted Alternative Sites is given to Seller
(provided, that such notice specifies that failure by Seller to respond to
such
notice shall be deemed approval of the proposed Permitted Alternative
Site). Any disputes as to whether any proposed parking site qualifies
as a Permitted Alternative Site shall be resolved by expedited arbitration
by
the American Arbitration Association in accordance with its rules for expedited
arbitration or any similar organization designated by Buyer and reasonably
acceptable to Seller. “Permitted Alternative Site” is defined
collectively as (A) those parking locations identified as Permitted Alternative
Sites in the Parking Lease or Parking Easement, (B) those sites agreed upon
between Seller and Buyer and (C) those sites determined to be Permitted
Alternative Sites by arbitration
as heretofore provided. Upon thirty (30) days notice from Buyer to
Seller at any time before or after Closing that a Permitted Alternative Site
shall be used for off-site parking until the completion of the Parking
Structures (pursuant to the Parking Easement and Parking Lease), such site
shall
be the location of such alternative parking beginning on the thirty-first
(31st) day
after notice is given or at Closing, whichever is later, and the Parking
Easement or Parking Lease shall only become effective on the Parking Structure
Completion Date. The provisions
of this clause (ii) shall survive the Closing.
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11.
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Environmental
Liability. The parties acknowledge that the Seller
has been working to complete Seller’s Remedial Obligations as set forth in
Exhibit “M” to the Existing Contract. A disagreement has arisen
among the parties concerning whether Seller has satisfied Seller’s
Remedial Obligations as set forth in Exhibit “M” to the Existing Contract.
Buyer acknowledges that upon the filing by Seller of an application
for a
legally binding determination of No Further Action with Conditions
(“NFA
with Conditions”) to be issued and approved by the Miami Dade Department
of Environmental Resource Management ("DERM") which application is
identical in form and substance to that which was electronically
delivered
to Buyers on August 8, 2007, (a copy of which is attached hereto
as
“Exhibit C”), Seller shall have completed Seller’s Remedial
Obligations. Buyer shall thereafter contact and work with DERM
directly with respect to the NFA with Conditions, and Buyer’s obligation
to close shall be as otherwise required by this Amendment. Buyer has
reviewed the NFA with Conditions and has contacted DERM independently
to
ascertain the current environmental condition of the Property and
upon
execution of this Amendment shall be deemed to accept the Property
subject
only to Seller’s obligations set forth in this paragraph. If,
subsequent to Seller's submission of the request for NFA with Conditions,
DERM requires additional remediation or other work on the Property
as a
condition for issuing an NFA with Conditions, Buyer shall be responsible
for completing such work as directed by DERM ("Additional DERM-Required
Work"), provided that the Amended Contract has not been terminated.
If the Amended Contract is terminated, Buyer shall have no obligation
to
Seller or to any third party to (i) conduct any additional DERM-Required
Work or (ii) otherwise perform any environmental assessment or remedial
activities under federal, state or local law. To the extent Buyer
performs any Additional DERM- Required Work prior to Closing, Seller
hereby consents to providing Buyer with reasonable access to the
Property
as necessary to perform the Additional DERM-Required Work, and Buyer
agrees to indemnify Seller for any injury to persons or damage to
property
arising out of Buyer’s negligence and/or Buyer's intentional wrongful acts
and/or Buyer's intentional wrongful omissions in the performance
of such
additional DERM-Required Work by Buyer in connection with obtaining
an NFA
with Conditions Letter prior to Closing (it being understood that
such
indemnification obligations shall survive any termination of the
Amended
Contract.). Upon delivery to DERM of the application for the NFA
with
Conditions, Seller shall have no further liability hereunder to Buyer
or
its successor and assigns for Seller’s Remedial Obligations.
Notwithstanding the foregoing, if DERM requires documentation of
any work
previously performed by Seller, information regarding title or survey
or
similar matters, or evidence of Seller’s consent to Buyer’s performance of
remedial activities, Seller agrees to cooperate with Buyer to provide
the
information to DERM in a diligent and timely manner (it being understood
that Seller shall have no obligation to Buyer or its successors and
assigns to complete any further field work, sampling, testing or
remediation of any kind with respect to any DERM-Required Work). To
the extent any of this Amendment is inconsistent with Exhibit “M,” the
terms of this Amendment shall
govern.
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12.
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Legal
Description. The parties acknowledge that a
disagreement arose with respect to the legal description of the Land
which
Seller had agreed to convey to Buyer and which Buyer agreed to purchase
from Seller. Buyer hereby waives any further objection to the
accuracy of such legal description and shall accept title to the
Property
with the legal description attached to this First Amendment as
Exhibit
“E”.
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13.
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Covenant
in lieu of Unity of Title. It is intended
that the property described on Exhibit “F” will be
divided pursuant to a Covenant in Lieu of Unity of Title. At
Closing, Buyer and Seller shall execute any and all documents required
to
apply for and secure the Covenant in lieu of Unity of Title, which
is
attached hereto as Exhibit “G”, including the
submission of any documents reasonably required by the City of
Miami.
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14.
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Time
of the Essence. Time is of the essence of the
Contract and this
First Amendment.
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15.
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Geo-Technical
Testing. Buyer shall have the right to enter upon
the Land and Improvements as of the date of this Amendment and until
the
Closing Date for the purpose of conducting soil borings and test
piles
(collectively referred to herein as “Geo-Technical
Testing”). Buyer acknowledges that the purpose of the
Geo-Technical Testing is limited to determining the location and
design of
foundations and the length of piles. Prior to entering the land to
conduct
Geo-Techncical Testing, Buyer shall provide Seller with reasonable
notice
of Buyer’s intent to conduct Geo-Technical Testing, which notice shall
include a brief description of the approximate location of, and time
and
personnel needed to conduct Geo-Technical Testing. Buyer’s
Geo-Technical Testing shall not unreasonably interfere with Seller’s use
of the Property. To the extent Buyer performs any Geo-Technical
Testing prior to Closing, Seller hereby consents to providing Buyer
with
reasonable access to the Property as necessary to perform the
Geo-Technical Testing, and Buyer agrees to indemnify Seller for any
injury
to persons or damage to property arising out of Buyer’s negligence and/or
Buyer's intentional wrongful acts and/or Buyer's intentional wrongful
omissions in the performance of such additional Geo-Technical Testing
by
Buyer (it being understood that such indemnification obligations
shall
survive any termination of the Amended Contract). Buyer shall
not conduct any environmental sampling of the Property in connection
with
Buyer’s performance of any Geo-Technical Testing. The results of any
Geo-Technical Testing performed by Buyer shall not modify Seller’s
Remedial Obligations as set forth in the Existing Contract, Exhibit
“M” to
the Existing Contract, or Paragraph 11 of this
Amendment. Buyer’s obligation to close shall be as otherwise
required by this Amendment. To the extent any of this Amendment
is inconsistent with Paragraph 4.1 of the Existing Contract or Exhibit
“M,” the terms of this Amendment shall
govern.
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IN
WITNESS WHEREOF, this First Amendment to Contract is entered into as of
the date first appearing above.
BUYER:
CITISQUARE
GROUP, LLC, a Florida limited liability company
By: /s/P.A.
Xxxxxx
Name: P.A.
Xxxxxx (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
