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HomeMy WebLinkAboutPurchase & Sale Agreement 021221FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT THIS FIRST AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (“Amendment”) dated as of February __, 2021 is between ALLTEL CORPORATION, a Delaware corporation, d/b/a Verizon Wireless (“Seller”), and NEW BEGINNINGS ACQUISITIONS, LLC, an Arkansas limited liability company (“Purchaser”). RECITALS A. Seller and Purchaser entered into a Real Estate Purchase and Sale Agreement dated November 30, 2020 (the “Agreement”), under which Purchaser agreed to purchase, and Seller agreed to sell, certain real and personal property located in Little Rock, Arkansas as further described in the Agreement. B. Purchaser and Seller desire to amend the Agreement as set forth herein. AGREEMENT In consideration of the Recitals and the mutual agreements which follow, Seller and Purchaser desire to enter into this Amendment and agree as follows: 1. Land Use Approvals. The Agreement is hereby amended to reflect that the Purchaser has the right throughout the pendency of the Agreement to investigate and confirm that zoning, including any current special exception, land use, and other applicable ordinances, regulations, proffers and other official actions, will permit the development of sufficient improvements for Purchaser to utilize the Property as a multi-family residential development (“Purchaser’s Intended Use”). If the current zoning and entitlements do not permit or are otherwise insufficient for Purchaser’s Intended Use, Purchaser may submit and prosecute an application or applications to the appropriate authorities to obtain all necessary approvals, entitlements, zoning, special exceptions, or authorizations required by any applicable authorities having jurisdiction relating to Purchaser’s Intended Use (collectively, the “Land Use Approvals”) and Seller agrees to use commercially reasonable efforts to cooperate with Purchaser in furtherance of and in connection with any and all such applications; provided, however, that Purchaser shall not submit any applications or other submittals or bind the Property in any way with respect to any such Land Use Approvals without Seller’s prior approval, which approval may be granted or withheld in Seller’s sole and absolute discretion, and which approval is required for each such application, submittal, or action regardless of whether Seller agreed that Purchaser may act as its agent in the matter or whether Seller has approved Purchaser’s plans for its intended use. Notwithstanding the foregoing, it is in Seller’s sole discretion whether it shall approve any action with respect to any Land Use Approval that would bind the Property prior to Closing. Furthermore, Purchaser agrees that it shall indemnify, defend, and hold Seller and its members, managers, directors, officers, partners, agents, employees, and managing agents harmless from and against any and all loss, damage, claim, demand, liability, or expense (including reasonable attorneys’ fees) resulting from claims by third parties and based on any acts or omissions (specifically including negligence) of Purchaser and Purchaser’s employees, agents, and contractors in connection with any application, submittal, or action taken by Purchaser relating to the Land Use Approvals. Notwithstanding anything to the contrary in this Agreement, Purchaser’s obligation to acquire the Property hereunder is not contingent upon Purchaser procuring any Land Use Approvals. 2. Terms Unchanged. Except as specifically stated above, all other terms and conditions of the Agreement shall be and remain unchanged and in full force and effect. 3. Ratification. The Agreement is hereby ratified, approved, incorporated by reference herein and deemed to be in full force and effect in all respects, as amended by this Amendment. 4. Miscellaneous. All capitalized terms used in this Amendment and not defined in this Amendment shall have the meanings assigned to such terms, if any, in the Agreement. In the event of any conflict between the terms and provisions of this Amendment and the terms and provisions of the Agreement, the terms and provisions of this Amendment shall govern and be controlling. 5. Counterparts. This Amendment may be executed in a number of identical counterparts. If so executed, each of such counterparts shall, collectively, constitute one agreement, but in making proof of this Amendment, it shall not be necessary to produce or account for more than one such counterpart. To facilitate the execution and delivery hereof, either of the parties hereto may affect delivery of this Amendment by transmittal of a copy of a counterpart hereof, executed by transmitting party, to the other party by means of facsimile, e-mail, or other similar electronic transmission, and the parties hereto agree that: (a) such transmittal of an executed counterpart shall have the same effect as delivery of an original executed counterpart, (b) the parties shall be bound by such means of delivery, and (c) the parties hereby waive any defense to validity or enforceability of this Amendment based upon delivery effected in accordance with the foregoing provisions. 6. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of Arkansas. 7. This Amendment shall bind and inure to the benefit of the parties hereto and their respective heirs, successors and permitted assigns. [Remainder of Page Intentionally Blank; Signatures on Following Page.] The parties hereto have executed this Amendment the day and year first above written. SELLER: ALLTEL CORPORATION, a Delaware corporation, d/b/a Verizon Wireless By: Name: Title: PURCHASER: NEW BEGINNINGS ACQUISITIONS, LLC, an Arkansas limited liability company By: Name: Title: