SECOND AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO
This
Second Amendment to Real Property Purchase and Sale Agreement (the
“Second
Amendment”) is made and entered into as of the 29th
day of March, 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, as amended by that First Amendment to Real
Property Purchase and Sale Agreement, dated as of February 26, 2018
(as amended, 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 seven (7) 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 April 6, 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 April 6, 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.”
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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 23, 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. 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
Second Amendment and that the Purchase Agreement, as amended by
this Second Amendment, shall be binding on Seller and Buyer,
respectively.
B. Terms not
specifically defined within this Second 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 Second Amendment. If and to the
extent that any of the provisions of this Second Amendment conflict
or are otherwise inconsistent with any provisions of the Purchase
Agreement, the provisions of this Second Amendment shall
prevail.
D. This Second
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 Second
Amendment may be executed in counterparts, and electronic
transmittal of the executed Second Amendment by each party shall be
sufficient to create a valid and binding agreement.
F. This Second
Amendment shall be binding upon the parties hereto and their
respective heirs, successors and assigns.
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IN WITNESS WHEREOF, Seller and Buyer
have executed this Second Amendment on the date first above
written.
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SELLER:
THE STATE MEDIA COMPANY,
a South
Carolina corporation
By:
/s/ R. Xxxxxx
Xxxxxxxx
Name:
R. Xxxxxx Xxxxxxxx
Title:
Vice President, Asst. Secretary and Treasurer
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BUYER:
VOLTARI REAL ESTATE HOLDING LLC,
a
Delaware limited liability company
By:
/s/ Xxxxx
Xxxxxxx
Name:
Xxxxx Xxxxxxx
Its:
Chief Accounting Officer
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