Loading...
HomeMy WebLinkAboutCRA-R-20-0005 Exhibit BExhibit "B" Sixth Amendment SIXTH AMENDMENT THIS SIXTH AMENDMENT is made and entered into as of March 31, 2020 by and between DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company (the "Developer") and the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. Developer and the CRA entered into that certain Block 55 Development Agreement dated as of October 1, 2018 (the "Original Agreement"), as amended by Amendment dated as of November 21, 2018, (the "First Amendment"), Second Amendment dated as of April 17, 2019 (the "Second Amendment"), Third Amendment dated as of September 26, 2019 (the "Third Amendment"), Fourth Amendment dated as of December 20, 2019 (the "Fourth Amendment") and Fifth Amendment dated as of March 18, 2020 (the "Fifth Amendment") (the Original Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment and the Fifth Amendment is collectively, the "Agreement"). B. Developer and the CRA desire to modify and amend certain terms and provisions of the Agreement, as hereinafter provided. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. RECITALS. The Recitals to this Sixth Amendment are true and correct and hereby incorporated by reference and made a part hereof. 2. DEFINED TERMS. Any defined terms utilized in this Sixth Amendment but not defined in this Sixth Amendment shall have the meanings ascribed to said terms in the Agreement. 3. EXTENSION OF DELIVERY DATE. Developer and the CRA desire to extend the due date of the Second Closing Extension Deposit (as defined in the Fourth Amendment) in the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00), which shall be credited to the Purchase Price, and the Second Additional Consideration (as defined in the Fourth Amendment) in the amount of Three Hundred Thousand and No/100 Dollars ($300,000), which shall not be credited to the Purchase Price, to the earlier of the Closing Date or the date of closing of the transactions contemplated by the Agreement. 4. EXTENSION OF THE CLOSING DATE. (a) The Closing Date is hereby extended to April 30, 2020, time being of the essence; provided that Developer shall have the right to extend the Closing Date as follows: (i) Developer shall have the right to extend the Closing Date through June 1, 2020, time being of the essence, which right shall be deemed automatically exercised if closing has not occurred on or before April 30, 2020, in which case, on such ADSLLP-00079057.5 date, an extension fee of $100,000 (the "May Extension Fee"), which is not credited to the Purchase Price, shall be earned by the CRA, and Developer shall pay the May Extension Fee on the Closing Date, as the same may be extended; and (ii) Developer shall have the additional right to extend the Closing Date through June 30, 2020, time being of the essence, conditioned delivery of written notice (which notice may be by email) to the CRA on or before June 1, 2020 and upon Developer paying to the CRA an additional extension fee of $100,000 (the "June Extension Fee"), which is not credited to the Purchase Price and which shall be earned by the CRA as of the date of such extension but payable on the Closing Date. (b) Developer shall pay the following amounts on the Closing Date, as the same may be extended: (i) the Second Closing Extension Deposit; (ii) the Second Additional Consideration; (iii) to the extent Developer has exercised its right to extend the Closing Date through June 1, 2020, the May Extension Fee; and (iv) to the extent Developer has exercised its right to extend the Closing Date through June 30, 2020, the June Extension Fee. (c) All payments due hereunder shall be paid directly to the CRA by wire transfer in accordance with the Wire Instructions (as defined in the Fourth Amendment). 5. ASSIGNMENT PRIOR TO CLOSING. Section 9 of the Fifth Amendment is hereby amended and restated in its entirety as follows: The parties acknowledge and agree that Developer may form a new limited liability company to own the property (the "Property Owner") and a new limited liability company to be the sole member and owner of the Property Owner ("Member"), provided that Property Owner is one hundred percent (100%) owned by Member and Member is one hundred percent (100%) owned by Developer. The CRA hereby consents to the assignment of the Development Agreement to the Property Owner at closing and agrees to convey the Property to the Property Owner at closing provided that (a) the Developer is the sole member and owner of Member, (b) Member is the sole member and owner of Property Owner and (c) Michael Swerdlow or an entity he controls retains all decision making with respect to Developer, Member and Property Owner, except for Major Decisions (as defined in the Block 55 Restrictive Covenant). Developer shall deliver to the CRA copies of the executed articles of organization and all amendments thereto and the executed operating agreements and all amendments thereto for the Property Owner and Member to enable the CRA to confirm the ownership structure of Property Owner and Member is consistent with the foregoing. ADSLLP-00079057.5 2 6. RATIFICATION. Except as modified by this Sixth Amendment, the Developer and the CRA ratify and reaffirm all terms and provisions of the Agreement. 7. CONFLICT. In the event of a conflict between the terms and provisions of this Sixth Amendment and the terms and provisions of the Agreement, the terms and provisions of this Sixth Amendment shall control. 8. COUNTERPARTS. This Sixth Amendment may be executed in counterparts by the parties hereto and each shall be considered an original as the parties are concerned but together such counterparts shall comprise only one Sixth Amendment. Executed counterparts transmitted by facsimile or PDF via email shall be binding upon the parties. [Signatures on following page] ADSLLP-00079057.5 3 IN WITNESS WHEREOF, the parties have executed this Sixth Amendment as of the date and year first above written. DEVELOPER: DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability com.any By: Name: Michael Swerdlow Title: Manager CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Cornelius Shiver, Executive Director Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA ADSLLP-00079057.5 4 IN WITNESS WHEREOF, the parties have executed this Sixth Amendment as of the date and year first above written. DEVELOPER: DOWNTOWN RETAIL ASSOCIATES LLC, a Florida limited liability company By: Name: Michael Swerdlow Title: Manager CRA: SOUTHEAST OVERTOWN / PARK WEST COMMUNITY REDEVELOPMENT AGENCY By: Cornelius Shiver, Executive Director Approved for legal sufficiency By: William R. Bloom, Esq. Holland & Knight LLP, Special Counsel to CRA ADSLLP-00079057.5 4 Joinder The undersigned Block 55 Lender, LLC joins in this Sixth Amendment to consent to the execution of the Sixth Amendment in accordance with the Recognition Agreement dated December 14, 2018. BLOCK 55 LENDER, LLC By: Name: Ezra Katz Title: Manager ADSLLP-00079057.5 5 GUARANTY THIS GUARANTY is given as of the 31' day of March, 2020, by Michael Swerdlow ("Guarantor") in favor of the Southeast Overtown/Park West Community Redevelopment Agency, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "CRA"). RECITALS A. Downtown Retail Associates LLC, a Florida limited liability company ("Developer"), and the CRA entered into that certain Block 55 Development Agreement dated as of October 1, 2018 (the "Original Agreement"), as amended by Amendment dated as of November 21, 2018, (the "First Amendment"), Second Amendment dated as of April 17, 2019 (the "Second Amendment"), Third Amendment dated as of September 26, 2019 (the "Third Amendment"), Fourth Amendment dated as of December 20, 2019 ("Fourth Amendment"), Fifth Amendment dated as of March 18, 2020 (the "Fifth Amendment") and Sixth Amendment dated as of March 31, 2020 (the "Sixth Amendment") (the Original Agreement as amended by the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment and the Sixth Amendment is collectively, the "Agreement") (capitalized terms used and not defined herein have the meanings set forth in the Sixth Amendment, or if not defined therein, in the Agreement). B. Pursuant to that certain Guaranty dated as of March 18, 2020, Guarantor agreed to guaranty the payment to the CRA of the Second Extension Deposit and the Second Additional Consideration on or before the Closing Date, with time being of the essence (the "Original Guaranty"). C. Pursuant to the Sixth Amendment, the due date for payment of the Second Extension Deposit and the Second Additional Consideration has been extended through the earlier of the Closing Date, as the same may be extended pursuant to the Sixth Amendment, or the date of closing of the transactions contemplated by the Agreement and no interest shall accrue on such amounts except as set forth in this Guaranty. D. Upon execution of this Guaranty, the Original Guaranty is superseded and replaced in its entirety by this Guaranty, and the Original Guaranty is of no further force and effect. E. Guarantor desires to guaranty the payment to the CRA from the Developer of the Second Extension Deposit, the Second Additional Consideration, and to the extent due pursuant to the Sixth Amendment, the May Extension Fee and the June Extension Fee, on or before the Closing Date, as the same may be extended pursuant to the Sixth Amendment, time being of the essence. NOW, THEREFORE, FOR VALUE RECEIVED, Guarantor, and by its acceptance hereof the CRA, each hereby acknowledge that the recitals set forth above are true and correct and incorporated herein by this reference. Guarantor hereby guarantees the full payment of the Second Extension Deposit in the amount of Five Hundred Thousand and No/100 Dollars ($500,000) and the Second Additional Consideration in the amount of Three Hundred Thousand and No/100 ADSLLP-00079057.5 6 Dollars ($300,000.00) on or before the earlier of the Closing Date, as the same may be extended pursuant to the Sixth Amendment, and the date of closing of the transactions contemplated by the Agreement, with time being of the essence. Guarantor further guarantees the full payment of (a) the May Extension Fee in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in the event that Developer exercises its right to extend the Closing Date through June 1, 2020 and (b) the June Extension Fee in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in the event Developer exercises its right to extend the Closing Date through June 30, 2020, on or before the earlier of the Closing Date, as the same may be extended pursuant to the Sixth Amendment, and the date of closing of the transactions contemplated by the Agreement. To the extent that the amounts guaranteed hereunder are not paid when due, such amounts shall bear interest at twelve percent (12%) per annum from the date due until paid together with all costs of collection, including reasonable attorney fees and costs. THIS GUARANTY SUPERSEDES AND REPLACES THE ORIGINAL GUARANTY IN ITS ENTIRETY AND THE ORIGINAL GUARANTY IS OF NO FURTHER FORCE AND EFFECT. IN WITNESS WHEREOF, the undersigned has executed this Gua . ty as o the date first written above. Michael werdlow ADSLLP-00079057.5 7