FIRST AMENDMENT TO
PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS
(2390 Alder Avenue, Rialto)
This FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS (“Amendment”), dated as of October __, 2016 (“Amendment Date”), is by and between the City of Rialto, a municipal corporation, (“Seller”), and Arrow United Investments, LLC, a California limited liability company (“Buyer”). Seller and Buyer are referred to herein individually as a “Party” and collectively as the “Parties.” RECITALS:
The Parties previously entered into that certain Purchase and Sale Agreement and Escrow Instructions dated for reference purposes only as of September 13, 2016 (“Purchase Agreement”) for the property described therein and identified above.
The Parties desire to amend the Purchase Agreement with respect to Buyer’s ability to assign of the Purchase Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, Seller and Buyer agree as follows:
Definitions. Except as specifically defined herein, all capitalized terms shall have the meaning set forth in the Purchase Agreement.
Amendments/Modifications. The Parties agree that the Purchase Agreement is amended/modified as follows.
Buyer’s Right to Enter into Sale Agreement for Remainder Parcel. Section 2.3 is amended to change the reference to Section 3.8 to Section 6.5.
Seller is advised that Buyer has entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions dated ______, 2016 (“Mancinelli PSA”) to sell the Remainder Parcel to Bruno Mancinelli (“Mancinelli”). Buyer represents and warrants to Seller that Mancinelli is aware of the limitations on the use of the Remainder Property as specified in the Purchase Agreement.
Seller is not responsible in any way to either Buyer or Mancinelli under the Mancinelli PSA. Seller’s sole obligations to Buyer and Mancinelli are governed solely by this Agreement.
Default. A new Section 9.A. is added to the Purchase Agreement as follows:
“9.A. Default by Buyer. Buyer shall not be in default for failure to perform any of its obligations under this Agreement unless it has received written notice from Seller specifying in detail the obligation which has not been performed (“Default Notice”) and thereafter fails to cure the matter within fifteen (15) days of the receipt of the Default Notice.” Successors and Assigns; Assignment. Section 10.4 of the Purchase Agreement is deleted in its entirety and the following is substituted in its place and stead:
“(a) This Agreement shall bind and inure to the benefit of Seller and Buyer and their respective successors and permitted assigns. Buyer may not assign this Agreement without the written consent of Seller. However, Buyer may assign Buyer’s rights and duties under this Agreement to a Buyer Affiliate without the prior written consent of Seller; provided, however, that Buyer provide written notice to Seller and Escrow Holder five (5) business days prior to Closing. In the event Buyer assigns its rights under this Agreement to a Buyer Affiliate as provided in this Section 10.4, Buyer and such assignee shall execute and deliver an assignment and assumption of this Agreement in a form approved by Seller. Any subsequent assignment may be made only with the prior written consent of Seller. For purposes of this Section, “Buyer Affiliate” means any entity that is controlled by Buyer (as a manager, member, general partner, or other similar capacity) and in which Buyer owns a substantial economic interest. (b) In addition to the foregoing, Seller agrees that Buyer may assign this Agreement in its entirety to Mancinelli provided that the assignment and assumption agreement is in a form acceptable to Seller and the executed Assignment/Assumption Agreement executed by both Buyer and Mancinelli is delivered to Seller not less than five (5) business days prior to the Closing. Any subsequent assignment of this Agreement by Mr. Mancinelli may be made only in compliance with Section 10.4(a). (c) Any assignment of this Agreement in violation of the foregoing provisions shall be null and void. Seller shall not be released and discharged from any liability or obligations under this Agreement on account of an assignment.” City Manager’s Authority. The following provision is added to the Agreement:
“5.11 City Manager’s Authority. Seller’s City Manager or his designee shall, in his sole and exclusive discretion, have the authority to execute documents on behalf of Seller including, but not limited to, issuing approvals, disapprovals and extensions. Any such approval, disapproval or extension executed by the City Manager or his designee shall be binding on Buyer.’ Interpretation. In the event of a conflict between the Purchase Agreement and this Amendment, this Amendment shall control.
Full Force and Effect. The Purchase Agreement remains in full force and effect as amended by this Amendment. [SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date and year first above written.
BUYER:
SELLER:
ARROW UNITED INVESTMENTS, LLC,
a California limited liability company
By: _________________________
Its: _______________________
By: _________________________
Its: ______________________
CITY OF RIALTO,
a California municipal corporation
By: ________________________
Deborah Robertson, Mayor
Dated: ___________, 2016
ATTEST:
________________________
Barbara McGee, City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLC
By: _____________________
Fred Galante, City Attorney