AGREEMENT OF PURCHASE AND SALE OF
REAL PROPERTY, IMPROVEMENTS AND
ASSOCIATED PERSONALITY
THIS AGREEMENT OF PURCHASE AND SALE ("Agreement") is made as of the
12th day of September, 1995, and between Hotel Syracuse, Inc., a New York
corporation ("Seller"), and Orangemen Club Limited Partnership, a New York
limited partnership ("Purchaser"), with reference to the following facts:
A. Seller owns real property and all improvements located thereon
situated in the City of Syracuse, State of New York, and certain personal
property and equipment, all of which real and personal property are being used
in the conduct of a hotel operation (the "Hotel").
B. Seller is desirous to and shall convert the Hotel into a
condominium. Pursuant thereto, the Seller shall reserve all floors and related
facilities of the Hotel except as provided below. Purchaser agrees to further
convert its portion of the condominium into a timeshare project whereby it shall
offer timeshare intervals to the public (the "Project").
C. Seller desires to sell, and buyer desires to buy, all of Seller's
right title and interest in and to said real property and improvements, personal
property, permits plans and specifications of floors 7, 8 and 9 of the Hotel,
upon the terms and conditions set forth below.
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon and in consideration of the purchase price hereinbelow set
forth, and the other terms, covenants and conditions set forth below, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, it is mutually covenanted and agreed by Seller and Purchaser as
follows:
1. Definitions.
(a) Real Property and Improvements. "Real Property and
Improvements" shall mean floors 7, 8 and 9 of the Hotel, which is more
particularly described in Exhibit "A" attached hereto and incorporated herein by
this reference, all improvements located thereon as of the Closing Date, all
hereditaments, easements, rights and appurtenances pertaining thereto as of the
Closing and all fixtures and apparatus affixed thereto as of the Closing.
(b) Personal Property. The "Personal property" shall mean all
of the equipment, supplies and other personal property of any nature whatsoever
which is owned by Seller and located upon the Real Property and Improvements as
of the Closing Date, including without limitation, the personal property listed
on Exhibit "B" attached hereto and incorporated herein by this reference. Said
Exhibit "B" shall be updated as of the Closing to delete therefrom any such
personal property which may have been replaced or otherwise disposed of between
the date hereof and the Closing Date and to add thereto any other items of
personal property which may have been acquired by Seller between the date hereof
and the Closing Date for use in the Business.
(c) Permits and Plans. The "Permits and Plans" shall mean all
permits, administrative approvals and applications therefor issued by or filed
with administrative authorities, relating to the Project.
(d) Property. The "Property" shall mean the Real Property and
Improvements, the Personal Property and the Permits and Plans, collectively.
(e) Closing. The "Closing" shall mean the consummation of the
purchase and sale of the Real Property and Improvements, the Personal Property
and the Permits and Plans contemplated by this Agreement, all as more
particularly set forth below.
(f) Closing Date. The "Closing Date" shall mean November 30,
1995, or such other date as Purchaser and Seller may hereafter agree upon in
writing.
(g) Effective Date. The "Effective Date" shall mean August
___, 1995, or such other date as Purchaser and Seller may hereafter agree upon
in writing.
(h) Preliminary Title Report. The "Preliminary Title Report"
shall mean the Preliminary Title Report dated as of August ___ 1995, issued by
_________________________ Title Insurance company, a copy of which is attached
hereto as Exhibit "G" and incorporated herein by this reference.
(i) Grant Deed. The "Grant Deed" shall mean the Grant Deed in
the form and substance of that attached hereto as Exhibit "H" and incorporated
herein by this reference, which shall be delivered by Seller to Purchaser at the
closing to convey to Purchaser title to the Real property and Improvements as
more specifically set forth below.
(i) Bill of Sale. The "Bill of Sale" shall mean the Bill of
Sale and Assignment, in the form and substance of that attached hereto as
Exhibit "I" and incorporated herein by this reference, which shall be delivered
by Seller to Purchaser at the Closing to convey to Purchaser title to the
Personal Property and the Permits and Plans as more specifically set forth
below.
(k) Title Policy. The "Title Policy" shall mean the title
insurance policy described in Section 4(b) below.
2. Purchase and Sale.
Subject to all of the terms and conditions of this Agreement
and for the consideration herein set forth, at the Closing Seller shall convey,
or cause to be conveyed, to Purchaser, and Purchaser shall purchase from Seller,
all of Seller's right, title and interest in and to all of the following:
(a) The Real Property and Improvements, subject to (i) such
easements, agreements and other matters as are shown as exceptions to title in
the Preliminary Title Report and (ii) the Deed of Trust;
(b) The Personal Property, free and clear of all
liens, and
(c) The Permits and Plans, to the extent assignable
under law.
3. Purchase Price and Payment.
The purchase price (the "Purchase Price") to be paid by
Purchaser to Seller for the Property is the sum of On Million, Six Hundred
Thousand Dollars ($1,600,000.00), payable as follows:
Upon the execution hereof Purchaser shall deliver to Seller
the sum of One Million, Six Hundred Thousand Dollars ($1,600,000.00), in the
form of a cashier's check payable to the order of Seller. Subject to section 4
below, the Seller shall be able to use the proceeds from the purchase price
prior to the Closing.
4. Title and Other Matters.
(a) Preliminary Title Report. Within thirty (30) day receipt
of the Preliminary Title Report, Purchaser shall have the right to object to any
exceptions to title by giving written notice to Seller of such objections. Upon
its receipt of any such written objection to any exception to title, Seller
shall remove of record any such exception to title at Seller's sole cost and
expense, and the closing shall be postponed for such length of time, but not in
any case beyond November 30, 1995, which may be required by Seller to do so. In
the event Seller elects not to remove any such additional exception, or fails to
do so for any reason, Seller shall have no liability whatsoever to Purchaser
with respect thereto, and, in the event Purchaser elects not to accept title to
the Real Property and Improvements subject to such exception, Purchaser's sole
remedy shall be to terminate this Agreement. In this event, it is agreed, to the
extent funds were given to the Seller, that Purchaser's liability to the Seller
or to any third party with respect to the repayment of the Purchase Price, shall
be terminated and the Seller shall be responsible and obligated to repay the
Purchase Price to such third party lender. Moreover, in the event the Purchaser
is not able to obtain the necessary permits to proceed with the Project, then
all liability to the Seller hereunder shall terminate, and to the extent it
received such funds, the Seller shall be responsible and obligated to repay the
Purchase Price to such third party lender. Purchaser's failure timely to
disapprove any additional exception to title shall conclusively be deemed his
approval thereof.
(b) Title Policy. For purposes of this Agreement the Title
Policy shall be a CLTA joint protection policy of title insurance issued by
_____________________________ Title Insurance company with liability in the
amount of Purchase Price showing title to the Real Property and Improvements
vested in Purchaser or nominee, subject only to the exceptions to title shown in
the Preliminary title Report and such additional exceptions to title, if any, as
may be approved by Purchaser between the date hereof and the Closing.
(c) Real Property Condition.
(i) The Seller represents and warrants that, to the
best of its knowledge that the Real Property and Improvements:
(1a) are free from any material or structural defect;
(2a) are free from any environmental hazards or
conditions which would be considered or are material violations of any federal,
state or local laws or regulations having jurisdiction thereover;
(3a) are free from asbestos; and,
(4a) are free from any defect, which would impede
owner's ability to market and sell timeshare intervals at the Project.
5. Inspections and Approval by Purchaser.
From and after the date hereof, Purchaser and its
agents, employees and contractors shall be afforded reasonable access to the
Property during normal business hours, upon reasonable notice and accompanied at
all times by a representative of Seller, for the purpose of making such
investigations as Purchaser deems prudent with respect to the Property.
6. Conditions Precedent to Purchaser's Obligation to
Close.
The obligation of Purchaser to consummate the transactions
contemplated hereby is subject to the following conditions, inserted for
Purchaser's sole benefit and which may be waived by Purchaser only in writing at
its sole option:
(a) Representations and Warranties True at Closing. The
representations and warranties of Seller contained in Sections 5 and 12 of this
Agreement shall be true on the date of Closing in all material respects as
though such representations and warranties were made on, and as of, such date.
(b) Compliance with this Agreement. Seller shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing.
(c) Title Policy. ____________________ Title Insurance Company
shall be ready, willing and able to issue the title Policy to Purchaser.
(d) Change in Condition. Subject to the provisions of Sections
14(b) and 14(c) hereof, there shall have occurred no material damage,
destruction or condemnation of the Property between the date hereof and the
Closing.
7. Conditions Precedent to Seller's Obligation to Close. The obligation
of Seller to consummate the transactions contemplated hereby is subject to the
following conditions, inserted for Seller's sole benefit and which may be waived
solely by Seller only in writing at its sole option:
(a) Representations and Warranties True at Closing. The
representations and warranties of Purchaser contained in this Agreement, or in
any certificate or document signed by Purchaser pursuant to the provisions
hereof, shall be true on, and as of, Closing in all material respects as though
such representations and warranties were made on, and as of such date.
(b) Compliance with this Agreement. Purchaser shall have
performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it on or prior to Closing.
8. Documents.
The following documents shall be delivered at Closing:
(i) The Grant Deed, duly executed and
acknowledged by Seller;
(ii) Executed Bill of Sale; and,
(iii) Appropriate conveyance forms.
9. Costs and Prorations.
(a) Prorations. All revenues, income, receivables, costs,
expenses and payables of the Property shall be apportioned equitably between the
parties as of the Closing Date on the basis of a thirty (30) day month, and with
respect to the items enumerated below where a particular manner of apportionment
is provided, then apportionment of such item shall be made in such manner. The
obligation to make apportionments shall survive Closing. Without limitation, the
following items shall be so apportioned:
(i) Real Estate and personal property taxes and
any special assessments, taking into consideration discounts for the earliest
permitted payment, based upon the latest previous tax levies. Such items shall
be reapportioned between Seller and Purchaser if current tax rates differ from
the latest previous tax rates as soon as the same are known;
(ii) No insurance policies shall be assigned
hereunder and accordingly there shall be no proration of insurance premiums.
(b) Expenses of Closing. The expenses of Closing
shall be paid in the following manner:
(i) Seller shall pay:
(A) The cost of the Preliminary Title Report.
(B) Documentary transfer taxes imposed upon the
conveyance of title to the Real Property and Improvements;
(C) Gains Tax.
(ii) Purchaser shall pay:
(A) Any sales taxes which may be owing in connection
with the transactions contemplated by this Agreement;
(B) The cost of the Title Policy. All other Closing
fees and expenses, including but not limited to the parties' legal expenses,
accounting and consulting fees, and other incidental expenses in connection with
this transaction shall be borne by the party incurring same.
10. The Closing.
The Closing shall occur at the office of the Seller at 500
South Warren Street, Syracuse, New York.
11. Representations, Warranties and Covenants of Seller.
Seller represents, warrants and covenants to Purchaser
that:
(a) Seller has full legal power and authority to enter into
and perform this Agreement in accordance with its terms, and that this Agreement
constitutes the valid and binding obligation of Seller, enforceable in
accordance with its terms, except as such enforcement may be affected by
bankruptcy, insolvency and other laws affecting the rights of creditors
generally.
(b) Seller has, and will at the Closing transfer to Purchaser,
good and marketable title to the Personal Property, free and clear of any liens,
security interests or other claims.
12. Representations and Warranties of Purchaser.
Purchaser hereby represents, warrants and covenants to Seller
that Purchaser has full legal power and authority to enter into and perform this
Agreement in accordance with its terms, and that this Agreement constitutes the
valid and binding obligation of purchaser, enforceable in accordance with its
terms, except as such enforcement may be affected by bankruptcy, insolvency and
other laws affecting the rights of creditors generally.
13. General Covenants and Agreements of Purchasers and Seller.
(a) Delivery of Possession. Possession of the Property shall
be delivered to Purchaser upon the Closing, subject to the rights of any tenants
in possession.
(b) Damage to or Destruction of Property Prior to Closing;
Risk of Loss. If prior to the Closing the Property shall sustain damage caused
by fire or other casualty which is insured and which would cost ___________
($____________) or more to repair, either Seller or Purchaser may respectively
elect to terminate this Agreement by written notice to the other within fifteen
(15) days after notice of such event, or at the Closing, whichever is earlier.
If neither Seller nor Purchaser so elects to terminate its obligations under
this Agreement, or if the loss or casualty would cost less than ______________
($____________) to repair and Seller has insurance coverage reasonably
satisfactory to Purchaser, the Closing shall take place as provided herein
without abatement of the Purchase Price, and there shall be assigned to
Purchaser at the Closing all of Seller's interest in and to the insurance
proceeds which may be payable to Seller on account of such occurrence and Seller
shall have no obligation of repair or replacement. If an uninsured loss or
casualty occurs in an amount of more than _____________ ($_______________),
either party may elect to terminate its obligations under this Agreement at any
time prior to the Closing without liability or recourse as to the other, failing
which Purchaser shall receive a credit at the Closing against the Purchase Price
in an amount equal to the cost of repairing or restoring the loss or casualty in
question. Seller shall bear the risk and expense of any uninsured loss or
casualty in an amount of ______________ ($_______________) or less.
(c) Condemnation of Property Prior to Closing. In the event
that the Real Property and Improvements or any material part thereof becomes the
subject of a condemnation proceeding prior to the Closing, Seller agrees to
advise Purchaser thereof immediately. In the event of such condemnation,
Purchaser shall have the option to (1) take title in accordance with the terms
and conditions of this Agreement and permit Seller to negotiate with the
condemning authority and receive the condemnation award, reducing the Purchase
Price as a post-Closing adjustment by the amount thereof received by Seller less
its reasonable costs and expenses incurred in negotiating such award; or (2)
take title in accordance with the terms and conditions of this Agreement and
negotiate with the said condemning authority for the condemnation award and
receive the benefits thereof without affecting the Purchase Price; or (3)
terminate this Agreement and declare its obligations thereunder null and void
and of no further effect, in which event all sums theretofore paid to Seller or
to Escrow Agent hereunder shall be returned to Purchaser as set forth herein.
(d) Brokers' Commissions. Each Party represents, warrants and
covenants to the other that it did not engage any broker, agent, finder or other
third party in connection with the purchase and sale contemplated herein and
that it did not incur any liability, contingent or otherwise, for any such
brokerage or finder's fees, agent's commissions or other like payments, in
connection with this Agreement or the transactions contemplated hereby.
(e) Further Assurances Prior to Closing. Seller and Purchaser
shall, prior to the Closing, execute any and all documents and perform any and
all acts reasonably necessary, incidental or appropriate to effectuate the
purchase and sale and the transactions contemplated in this Agreement.
(f) Failure to Close. Except as otherwise provided in this
Agreement, in the event the Closing does not occur for any reason whatsoever,
and after the parties shall have conformed to the requirements set forth in this
Agreement, the parties shall execute and deliver mutual general releases with
respect to any claims in connection with the transactions contemplated by this
Agreement and evidencing the termination of this Agreement.
(g) Nominee. Purchaser shall have the right to name a nominee
to take title to the Property. Purchaser shall notify Seller and Escrow Agent at
least five business days prior to the Closing whether or not Purchaser intends
to so name a nominee, and if so, the exact name and composition of such entity.
The taking of title to the Property by any such nominee shall not relieve
Purchaser of any obligation or liability arising hereunder or any instruction or
agreement delivered pursuant hereto.
(h) Waivers, Amendments and Modifications of Provisions.
Waivers, amendments or modifications of any term or condition of this Agreement
must be in writing signed by the party against whom such waiver is sought to be
enforced. No waiver by any party of any breach hereunder shall be deemed a
waiver of any other or subsequent breach.
(i) Indemnification. Seller shall indemnify and hold harmless
Purchaser and its officers, directors, shareholders, employees, agents and
attorneys from and against any and all loss, cost, damage, claim, liability or
expense, including court costs and all attorneys' fees actually incurred and
including costs of appeal, settlement or defense as well as the obligation to
undertake or assume such defense if so requested, arising out of or in
connection with any injury or damage or claim of injury, including death, or
damage of any kind whatsoever, to persons or property, including employees,
agents and business invitees of Seller (unless and then only to the extent
caused by Purchaser), occasioned in or about the Property prior to the Closing.
Purchaser shall indemnify and hold harmless Seller and its officers, directors,
shareholders, employees, agents and attorneys from and against any and all loss,
damage, claim of damage, liability or expense, including costs and all
attorneys' fees actually incurred, arising out of or in connection with any
injury or damage or claim of injury, including death, or damage of any kind
whatsoever, to persons or property, including employees, agents and business
invitees of Purchaser (unless and then only to the extent caused by Seller),
occasioned in or about the Property on or subsequent to Closing. These covenants
shall survive the Closing subject only to the statute of limitations. In
addition, each party shall indemnify and hold harmless the other from and
against any and all loss, cost, damage, claim, liability or expense, including
court costs and all attorneys fees actually incurred, arising out of or in
connection with any breach by such party of any of its obligations hereunder.
14. Miscellaneous Provisions.
(a) Successors and Assigns. Subject to the provisions hereof,
the terms and provisions hereof shall be binding upon and inure to the benefit
of the successors and assigns of the parties hereto.
(b) Meaning of Terms. When necessary herein, all terms used in
the singular shall apply to the plural, and vice versa, and all terms used in
the masculine shall apply to the neuter and feminine genders, and vice versa.
(c) Joint and Several Liability. The obligations of Purchaser
hereunder shall be joint and several.]
(d) Entire Agreement. This Agreement is the entire agreement
between the parties hereto with respect to the subject matter hereof, and
supersedes all prior agreements between the parties hereto with respect thereto.
Neither Seller nor any of its employees, agents, principals or representatives,
actual or alleged, has made any agreement, covenant, warranty or representation
to Purchaser except as expressly set forth in this Agreement. No claim of
waiver, modification, consent or acquiescence with respect to any of the
provisions of this Agreement shall be made against either party, except on the
basis of a written instrument executed by or on behalf of such party.
(e) Governing Law and Venue. This Agreement is to be governed
by and construed in accordance with the laws of the State of New York. Any suit
brought hereon shall be brought in the state or federal courts sitting in
Syracuse, New York, the parties hereto hereby waiving any claim or defense that
such forum is not convenient or proper. Each party hereby agrees that any such
court shall have in persona jurisdiction over it and consents to service of
process in any manner authorized by New York law.
(f) Paragraph Headings. The headings of the several paragraphs
of this Agreement are inserted solely for convenience of reference and are not a
part of and are not intended to govern, limit or aid in the construction of any
term or provision hereof.
(g) Attorneys' Fees. If either Seller or Purchaser shall bring
an action against the other by reason of the breach of any covenant, provision
or condition hereof, or otherwise arising out of this Agreement, the
unsuccessful party shall pay to the prevailing party all attorneys' fees and
costs actually incurred by the prevailing party, in addition to any other relief
to which it may be entitled.
(h) Notices. All notices, requests and other communications
hereunder shall be in writing and shall be deemed to have been given if
delivered by courier or other means of personal service, or if sent by telex or
telecopy or mailed first class, postage prepaid, by certified mail, return
receipt requested, addressed to:
Purchaser:
ORANGEMEN CLUB LIMITED PARTNERSHIP
2777 E. Camelback Road
Phoenix, AZ 85016
Attention: Joseph Martori
Seller:
HOTEL SYRACUSE, INC.
500 South Warren Street
Syracuse, New York 13202
Attention: Michael A. Bennett
All notices, requests and other communications shall be deemed received on the
date of actual receipt as evidenced by written receipt, acknowledgment or other
evidence of actual receipts.
(i) Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
(j) Further Assurances on or After Closing. Each party hereto
agrees to do all acts and things and to make, execute and deliver such written
instruments as shall be reasonably necessary to carry out the terms and
provisions of this Agreement.
(k) Other Parties. Nothing in this Agreement shall be
construed as giving any person, firm, corporation or other entity, other than
the parties hereto, their successors and permitted assigns, any right, remedy or
claim under or in respect of this Agreement or any provision hereof.
(l) Counterparts. This Agreement may be executed in any number
of counterparts, each of which so executed shall be deemed an original; such
counterparts shall together constitute but one agreement.
(m) Time of the Essence. Time is of the essence in the
performance of each of the duties and obligations of the parties hereunder and
the satisfaction of each of the conditions precedent set forth herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first hereinabove written.
ORANGEMEN CLUB
HOTEL SYRACUSE, INC. LIMITED PARTNERSHIP
By: Syracuse Project Incorporated,
General Partner
By: /s/ Illegible
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Title: President By: /s/ Joseph P. Martori
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Title: Chairman
AGREED AND ACCEPTED:
RESORT SERVICE COMPANY, INC.
By: /s/ Illegible
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Title: VP, Sec. and GC