FIRST AMENDMENT TO AGREEMENT OF SALE
THIS FIRST AMENDMENT TO AGREEMENT OF SALE (this "Amendment") is entered
into as of the 12th day of August, 1996, by and between Olmstead Properties,
Inc., a New York corporation ("Purchaser"), 45 West 45th Street Limited
Partnership, an Illinois limited partnership ("Seller") and The Balcor Company,
a Delaware corporation.
R E C I T A L S:
A. Purchaser, Seller and Balcor have entered into that certain Agreement
of Sale dated as of July 29, 1996 ("Purchase Agreement") with respect to the
purchase and sale of 45 West 45th Street, New York, New York.
B. Purchaser, Seller and Balcor desire to amend the Purchase Agreement
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Purchaser and Seller hereby agree as follows:
1. Capitalized terms used but not defined herein shall have the meanings
set forth in the Purchase Agreement.
2. In the event of any inconsistency between the terms and the
provisions of the Purchase Agreement and the terms and provisions of this
Amendment, the terms and provisions of this Amendment shall govern and control.
3. Paragraph 3A(e) of the Purchase Agreement is amended by inserting the
phrase "based on the Existing Survey" immediately after the phrase "survey
reading" and before the close parenthesis and by deleting exception number 4.
4. Notwithstanding the provisions of Section 4A of the Purchase
Agreement, Seller, rather than Purchaser, shall pay for the cost of the
documentary or transfer stamps and other costs and transfer taxes described in
said Paragraph 4A, other than charges of the Title Insurer which are to be paid
by Purchaser.
5. The Title Commitment and other due diligence materials and
investigations disclose various alleged violations with respect to the
Property.
(a) With respect to the alleged May 8, 1990 elevator violation and
June 16, 1988 ECB Violation with respect to bathroom renovations, Seller shall
either cause such violations to be remedied and discharged of record or at
Closing Purchaser shall receive a credit in the amount of $2,000 with respect
to the May 8, 1990 elevator violation and a credit in the amount of $10,000
with respect to the June 16, 1988 ECB Violation, in each case, in the event not
remedied and discharged of record.
(b) Purchaser and Seller acknowledge that a current environmental
report for the property will not be available for another week to ten days.
Purchaser agrees to deliver to Seller a copy of the report in the event the
report reveals remediation for which Purchaser requests Seller to contribute to
the cost thereof. In the event the environmental report discloses
environmental conditions with respect to which the engineer recommends
remediation and which were not disclosed in the Existing Report, and the cost
to perform such remediation, as reasonably determined by Purchaser and Seller,
is not greater than $50,000, then (a) Closing shall occur as provided in the
Purchase Agreement, as amended hereby, and (b) Purchaser shall be responsible
for the first $25,000 of such costs and Seller agrees to provide to Purchaser a
credit at closing equal to the amount by which the estimated cost of
remediation exceeds $25,000, said credit not to exceed $25,000. In the event
the reasonably estimated cost to remediate conditions not disclosed in the
Existing Report exceeds $50,000, then Purchaser shall have the right either to
terminate the Agreement by written notice to Seller given no later than three
business days after Purchaser has received the new environmental report or to
acquire the Property subject to such conditions with a credit against the
Purchase Price of $25,000.
(c) Seller agrees to use its commercially reasonable efforts to
remove all other violations disclosed in writing to Seller prior to Closing
provided Seller shall not be obligated to expend any funds or incur liability
in an amount in excess of $5,000 in the aggregate in connection therewith.
(d) With respect to the Local Law 10 Filing and the Class E system
approval, Seller agrees to cause the filing to be made and approval obtained
and, subject to the following sentence with respect to the Local Law 10 Filing,
to correct any hazardous conditions identified in the filing or in the
approval. Notwithstanding the foregoing, with respect to any hazardous
condition disclosed in the Local Law 10 Filing, Seller shall not be obligated
to expend any funds or incur any liability in an amount in excess of $10,000 in
the aggregate. It shall be a condition to Purchaser's obligation to close that
the Class E system approval has been issued and delivered to Purchaser and the
Local Law 10 Filing filed (with evidence thereof furnished to Purchaser) and
all material hazardous conditions corrected.
(e) Seller's sole liability, and Purchaser's sole remedies, with
respect to the violations described above and all other violations of which
Purchaser has knowledge as of the date hereof, shall be as set forth in clauses
(a), (b), (c) and (d) above.
6. The Closing Date shall be November 12, 1996 provided Purchaser shall
have the right to extend the Closing Date to a date no later than December 12,
1996 provided Purchaser delivers to Seller written notice no later than October
26, 1996 and pays to Seller, on or before November 8, 1996, the amount of
$200,000 which shall be applied toward the Purchase Price and which amount
shall be deemed "Additional Earnest Money".
7. No later than fourteen (14) days prior to the Closing Date, Seller
agrees to deliver notice of cancellation to the parties to the Service
Contracts identified on Exhibit G which are cancelable on 30 day's notice or
less and which are identified in writing by Purchaser to Seller. In addition,
Seller agrees not to enter into any new service contracts or except as provided
in the preceding sentence with respect to termination, modify any existing
service contracts, which new service contract or amendment would be binding on
Purchaser after Closing.
8. (a) Paragraph 16.B(vi) is deleted in its entirety and the following
is substituted therefor:
"Seller has not either directly or through its agents, and other third
parties, entered into any contract with any labor organization or service
provider (other than those listed on Exhibit G) regarding the Property, nor is
it permitted to do so through the Closing Date"; and
(b) Paragraph 16.B(vii) is amended by deleting the phrase "and
updated as of the Closing Date".
9. On the Closing Date, Seller shall assign to Purchaser all of Seller's
right, title and interest if any, in and to all tax certiorari proceedings and
the right to receive payment as a result thereof. Purchaser agrees to
indemnify, defend and hold Seller and all Affiliates of Seller harmless from
any and all liability, costs, and expense (including without limitation
reasonable attorney's fees, court costs and costs of appeal), suffered or
incurred by Seller or Affiliates of Seller as a result thereof, including,
without limitation, claims of current and prior tenants of the Property.
Seller agrees to cooperate, at no cost, expense or liability to Seller, with
Purchaser in connection with the tax certiorari proceedings, if any, including,
without limitation, making the books and records relating to the tax certiorari
proceedings available to the New York City Law Department should they request
an examination of the same.
10. Seller agrees to cooperate with Purchaser in Purchaser's effort to
obtain financing for the Property provided in no event shall Seller be
obligated to incur any liability or expend any funds in connection therewith.
Without limiting the generality of the foregoing, Seller agrees to cooperate in
an effort to obtain non-disturbance agreements from tenants of the Property
including, without limitation, First Dept., Leo Wolleman and Steve
Schwartzapfel. It shall not be a condition to Purchaser's obligation to close
the transaction that non-disturbance agreements are obtained.
11. This Amendment may be executed in multiple counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same instrument.
12. Exhibit K is modified to reflect that the reference to "Service
Contracts" as defined therein shall be limited to only those Service Contracts
set forth on Exhibit G which have not been cancelled on or before the Closing
Date as provided in Paragraph 7 hereof and those service contracts entered into
after the date hereof with Purchaser's consent as provided in Paragraph 7
hereof.
13. Supplementing Paragraph 18 of the Purchase Agreement and without
limiting the provisions contained therein, Seller agrees to use commercially
reasonable efforts (but without any obligation to expend any funds or incur any
liability) to obtain Tenant Certificates from all of the tenants of the
Property.
14. Except as amended hereby, the Purchase Agreement remains unmodified
and in full force and effect, including, without limitation, Paragraphs 2, 7
and 10 thereof.
PURCHASER:
OLMSTEAD PROPERTIES, INC., a New York corporation
By: /s/ Samuel Rosenblatt
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Name: Samuel Rosenblatt
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Its: President
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SELLER:
45 W. 45TH STREET LIMITED PARTNERSHIP,
an Illinois limited partnership
By: 45 W. 45TH Street Partners, Inc., an Illinois
corporation, its general partner
By: /s/ James E. Mendelson
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Name: James E. Mendelson
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Its: Authorized Rep.
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BALCOR:
THE BALCOR COMPANY, a Delaware corporation
By: /s/ James E. Mendelson
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Name: James E. Mendelson
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Its: Authorzied Rep.
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