FIRST AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT
Exhibit
10.1
FIRST AMENDMENT TO
This
First Amendment to Real Property Purchase and Sale Agreement (the
“First
Amendment”) is made and entered into as of the 26th
day of February, 2018, by and between The State Media Company, a
South Carolina corporation (“Seller”), and Voltari
Real Estate Holding LLC, a Delaware limited liability company
(“Buyer”).
RECITALS
A.
Seller and Buyer entered into a Real Property Purchase and Sale
Agreement, dated as of January 19, 2018 (the “Purchase
Agreement”).
B.
Seller and Buyer desire to amend the Purchase Agreement to extend
each of the Review Period and the Closing Date (as each is defined
therein) for an additional thirty (30) days.
NOW, THEREFORE, in consideration of the
mutual promises set forth herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Recitals. The foregoing recitals are
true and correct and are incorporated herein by this
reference.
2. Extension of Review Period. Section
8.2.1 of the Purchase Agreement is hereby deleted in its entirety
and the following is substituted in place thereof:
“8.2.1
Review Period.
Buyer shall have until March 30, 2018 (the “Review Period”) to accept and
approve, in Buyer’s sole discretion, the Property and the
results of any and all Studies with respect to the Property as
Buyer may elect to make or obtain, including without limitation,
Studies regarding or concerning zoning, building codes, design
review standards, and other governmental regulations;
architectural, mechanical, building systems, and structural
inspections; engineering tests; availability of water and
utilities; soils, seismic and geologic condition; physical and
environmental condition; entitlements; ability to develop, improve
or remodel the Property; marketing and economic studies; and
contracts and documents concerning the Property. Buyer, in its sole
and exclusive discretion, may terminate this Agreement, for any or
no reason, whatsoever, at any time, prior to 5:00 p.m. Eastern Time
on March 30, 2018 (the “Review Period Deadline”). Upon any
such termination of this Agreement pursuant to Buyer’s rights
under this Section 8.2.1, the Initial Deposit (and any accrued
interest thereon) shall be promptly returned to Buyer, and Buyer
and Seller shall have no further rights and obligations hereunder
except those which expressly survive termination of this Agreement.
The failure of Buyer to terminate this Agreement in writing prior
to the Review Period Deadline shall irrevocably be deemed to
constitute Buyer’s (a) unconditional approval of its Studies
and the condition of the Property, (b) election to close its
acquisition of the Property subject to satisfaction of the other
conditions set forth in this Section 8.2, and (c) agreement that
the Deposit is nonrefundable to Buyer except as otherwise noted in
Section 2.2.2 hereof. The cost of all such inspections, tests and
Studies shall be borne exclusively by Buyer.”
3. Extension of Closing. Section 3.1 of the
Purchase Agreement is hereby deleted in its entirety and the
following is substituted in place thereof:
“3.1
Place and Date. The
purchase and sale of the Property shall be completed in accordance
with Article 9 hereof (the “Closing”). The Closing shall occur
by mail through an escrow (the “Escrow”) with First
American Title (the “Settlement Agent”), whose address
is Xxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attn:
Xxxxxx X. Xxxxxx, or at such other place as Seller and Buyer agree
in writing, on the basis of a “deed and money” escrow
closing. The Escrow shall be deemed open on the date Buyer delivers
the Initial Deposit to the Settlement Agent. Subject to the
conditions precedent described in Article 8 hereof, the Closing
shall occur not later than April 16, 2018, unless extended by
Seller and Buyer in writing (the date on which the Closing occurs
being hereinafter sometimes referred to as the “Closing Date”). In the event there
exists a failed condition to Buyer’s or Seller’s
obligation and Buyer and Seller do not agree to extend the Closing
Date, or such failed condition exists after expiration of any such
extension, then the party for whose benefit such condition exists
may waive the condition or terminate this Agreement by written
notice to the other party and to the Settlement Agent. The Escrow
shall be considered closed when the Deed is recorded in the
Official Records of Richland County, South Carolina
(“Official
Records”).”
4. Seller’s Response Notice. Seller
acknowledges receipt of the Defect Notice from Xxxxx Xxxxxxx LLP,
on behalf of Buyer, dated February 16, 2018 (the
“February 16 Defect
Notice”). Notwithstanding anything to the contrary in
Section 5.2.2 of the Purchase Agreement, Seller shall have until
March 2, 2018, to deliver Seller’s Response Notice with
respect to the February 16 Defect Notice. If Seller fails to
deliver said Seller's Response Notice by March 2, 2018, Seller
shall be deemed to be unable to remove the disapproved exceptions
or matters set forth in the February 16 Defect Notice and Buyer
shall have the right to terminate the Purchase Agreement in
accordance with Section 5.2.2 of the Purchase
Agreement.
5. Miscellaneous.
A.
Each of
Seller and Buyer represents and warrants to the other that it has
not transferred or assigned its interests in, to and under the
Purchase Agreement and has full power and authority to enter into
this First Amendment and that the Purchase Agreement, as amended by
this First Amendment, shall be binding on Seller and Buyer,
respectively.
B. Terms not
specifically defined within this First Amendment shall have the
meaning set forth in the Purchase Agreement.
C. Except as
herein specifically modified and amended, the Purchase Agreement
shall remain in full force and effect. From and after the date
hereof, the term "this Agreement" shall be deemed to refer to the
Purchase Agreement, as amended by this First Amendment . If and to
the extent that any of the provisions of this First Amendment
conflict or are otherwise inconsistent with any provisions of the
Purchase Agreement, the provisions of this First Amendment shall
prevail.
2
D.
This First
Amendment shall be governed in all respects by the laws of the
State of South Carolina without regard to principles of conflict of
law.
E.
This First
Amendment may be executed in counterparts, and electronic
transmittal of the executed First Amendment by each party shall be
sufficient to create a valid and binding agreement.
F.
This First
Amendment shall be binding upon the parties hereto and their
respective heirs, successors and assigns.
[REMAINDER
OF PAGE INTENTIONALLY BLANK - SIGNATURE PAGE FOLLOWS]
3
IN WITNESS WHEREOF, Seller and Buyer
have executed this First Amendment on the date first above
written.
|
SELLER:
THE STATE MEDIA COMPANY,
a South
Carolina corporation
By:
/s/ Xxxxxx
XxXxxxxx
Name:
Xxxxxx XxXxxxxx
Its:
Vice President and Secretary
|
|
BUYER:
VOLTARI REAL ESTATE HOLDING LLC,
a
Delaware limited liability company
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Its:
Chief Accounting Officer
|
|
|
|
|
4
