Second Amendment to Real Estate Purchase and Sale Agreement, by and among Tharaldson Ethanol Plant I, LLC, TMII South Tech, LLC, C.Y. & R.I. Heritage Inn of Palmdale, Inc., C.Y. Heritage Inn of Dayton, Inc., and 4424 Polaris Avenue, LLC and Brightline Holdings, LLC, dated as of November 30, 2018

EX-10.79 16 s002218x10_ex10-79.htm EXHIBIT 10.79

Exhibit 10.79

SECOND AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT

CITYVIEW PROPERTY, CLARK COUNTY, NEVADA

THIS SECOND AMENDMENT TO REAL ESTATE PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into as of November 30, 2018 (the “Amendment Date”), by and among Tharaldson Ethanol Plant I, LLC, a Nevada limited liability company (“TEP”), TMII South Tech, LLC, a Nevada limited liability company (“TMII”), C.Y. & R.I. Heritage Inn of Palmdale, Inc., a Nevada corporation (“Heritage Inn Palmdale”), C.Y. Heritage Inn of Dayton, Inc., a Nevada corporation (“Heritage Inn Davton”), and 4424 Polaris Avenue, LLC, a Nevada limited liability company (“4424 Polaris” and, together with TEP, TMII, Heritage Inn Palmdale and Heritage Inn Dayton, the “Seller”) and Virgin Trains USA LLC f/k/a Brightline Holdings, LLC , a Delaware limited liability company (“Purchaser”).

RECITALS

A. Seller and Purchaser have previously entered into that certain Real Estate Purchase and Sale Agreement, dated September 17, 2018, as amended by that certain Amendment to Real Estate Purchase and Sale Agreement, dated as of October 31, 2018 , with respect to certain real property bearing Clark County Assessor Parcel Numbers 162-20-112-002 , 162-20-112-003, 162-20-214-004, 162-20-214-003, 162-20-214-005, 162-20-214-001, 162-20-214-002 and 162-20-112-001 as described more fully there in (as amended, the “Agreement”).

B. The parties hereto now desire to amend the Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties hereto, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference as though set forth in full.

2. Capitalized Terms. All capitalized terms used herein shall have the meanings ascribed to them in the Agreement, unless otherwise defined herein.

3. Amendment. The Agreement shall be amended by deleting in its entirety and replacing the definition of Inspect ion Period in Section 2.13 of the Agreement with the following:

“Inspection Period” shall mean the period commencing on the Effective Date and expiring at 12:00 p.m. (Pacific) on December 5, 2018.

4. Conflict. This Amendment is and shall be construed as a part of the Agreement. In case of any inconsistency between this Amendment and the Agreement, the provisions containing such inconsistency shall first be reconciled with one another to the maxim um extent possible, and then to the extent of any remaining inconsistency, the terms of this Amendment shall be controlling.

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5. Force and Effect. Except as set forth in this Amendment, the terms and conditions of the Agreement shall remain unchanged and in full force and effect.

6. Counterparts: Facsimile or Electronic Signature: Authority. The parties hereto agree that this Amendment may be executed in multiple counterparts which, when signed by all parties, shall constitute a binding agreement. The parties further agree that this Amendment may be executed and delivered by facsimile or electronic signature, and that any facsimile or electronic signature shall be binding upon the party providing such signature as if it were the party’s original signature.

[Signatures appear on next page]

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the Amendment Date.

	PURCHASER:

	VIRGIN TRAINS USA LLC f/k/a BRIGHTLINE HOLDINGS, LLC
	a Delaware limited liability company

	By:	/s/ Kolleen Cobb
	Name:	Kolleen Cobb
	Title:	Vice President

[Signatures Continue on Following Page]

	SELLER:

	THARALDSON ETHANOL PLANT I, LLC,
	a Nevada limited liability company

	By:	/s/ Gary Tharaldson
	Name:	Gary Tharaldson
	Its:	Manager

	TMII SOUTH TECH, LLC,
	a Nevada limited liability company

	By:	/s/ Gary Tharaldson
	Name:	Gary Tharaldson
	Its:	Manager

	C.Y. HERITAGE INN OF DAYTON, INC.,
	a Nevada corporation

	By:	/s/ Gary Tharaldson
	Name:	Gary Tharaldson
	Its:	President

	4424 POLARIS AVENUE, LLC
	a Nevada limited liability company

	By:	/s/ Gary Tharaldson
	Name:	Gary Tharaldson
	Its:	Manager

	C.Y. & R.I. HERITAGE INN OF PALMDALE, INC.
	a Nevada corporation

	By:	/s/ Gary Tharaldson
	Name:	Gary Tharaldson
	Its:	President

Consent to Amendment

Western Alliance Bank, an Arizona corporation, as lender to Seller, hereby consents to this Amendment.

WESTERN ALLIANCE BANK,

an Arizona corporation

By:

/s/ Dennis Balletto

Name:

Dennis Balletto

Its:

Senior Vice President