Presidential House - Third Amendment



Exhibit 10.18

 

THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT

           
This Third Amendment to Purchase and Sale Contract (this “Amendment”) is
made as of May 15, 2009, between DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES
II LIMITED PARTNERSHIP (“Seller”) and ADVENIR, INC.
(“Purchaser”).

W I T N E S S E T H:

           
WHEREAS, Seller and Purchaser entered into a Purchase and Sale Contract
dated as of March 25, 2009, as amended by the terms of that certain First
Amendment to Purchase and Sale Contract, dated April 24, 2009 (the “First
Amendment”) and that certain Second Amendment to Purchase and Sale
Agreement, dated May 8, 2009 (said Purchase and Sale Contract, as amended by the
First Amendment and the Second Amendment, being herein collectively called the
“Agreement”) with respect to the sale of certain property known as
Presidential House located in Miami-Dade County, Florida, as described in the
Agreement; and

           
WHEREAS, Seller and Purchaser desire to amend the Agreement on the terms
set forth herein. 

           
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the sum of $10.00 and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:

1.     
Capitalized Terms.     Capitalized terms used
in this Amendment shall have the meanings given to them in the Agreement, except
as expressly otherwise defined herein.

2.     
Purchase Price.         
The first three lines of Section 2.2 of the Agreement shall be
amended as follows:  “The total purchase price ("Purchase
Price") for the Property shall be an amount equal to Twelve Million Five
Hundred Eighty-Five Thousand  Dollars ($12,585,000.00), payable by
Purchaser, as follows:”

3.     
Loan Assumption Approval Period.  Section 4.5.9 of the
Agreement shall be amended as follows:

           
a.         The Loan Assumption Approval
Period, set forth in Section 4.5.9 of the Agreement, is hereby extended to June
3, 2009.

           
b.         Section 4.5.9.1 of the
Agreement shall be deleted and replaced as follows:  “If (a) Purchaser
fully complies with its obligations under this Contract (including this
Section 4.5) and the requirements of the Assumed Loan Documents in
connection with obtaining the Loan Assumption and Release, (b) Purchaser has
used and is using commercially reasonable good faith efforts to obtain the Loan
Assumption and Release, and (c) Purchaser does not obtain the consent of the
Lender to the Loan Assumption and Release on or before the expiration of the
Loan Assumption Approval Period, then Purchaser shall have the right (the
“Loan Assumption Extension Right”), exercisable by delivering
written notice to Seller prior to the expiration of the
Loan Assumption Approval Period (the "Loan Assumption Period Extension
Notice"), to extend the expiration date of the Loan Assumption Approval
Period to June 25, 2009 for the sole purpose of obtaining Lender's approval of
the Loan Assumption and Release; provided that concurrently with delivering the
Loan Assumption Period Extension Notice, Purchaser delivers to Escrow Agent an
additional deposit of $50,000.00 (the “Loan Assumption Period Extension
Deposit”).  The Loan Assumption Period Extension Deposit shall be
deemed part of the Deposit.

4.     
Closing
Date.            
The Closing Date, set forth in Section 5.1.1 of the Agreement, is hereby
extended to June 30, 2009.

5.     
Groundwater Sampling Adjournment
Right.           
Paragraph 5 of the First Amendment is hereby deleted in its entirety.

6.     
Open Violations and
Permits.           
Notwithstanding anything to the contrary contained in Section 7.7 of the
Agreement, (x) Seller shall have no obligation to cure the following violations:
Violation Numbers 20090127991, 20090128019 and 20090128028 (the “Lighting
Related Violations”) or any other violations relating to the lighting on the
Property and (y) the term “Violations” as defined in the Agreement shall not
include the Lighting Related Violations.  Seller agrees to deliver to
Purchaser, promptly after the execution and delivery of this Amendment,  a
copy of all engineering plans relating to any work necessary to cure the
Lighting Related Violations and that are in Seller’s possession or reasonable
control. 

7.     
Fuel Spill and No Further Action Letter.  The following is
hereby added to the end of Section 7.8 of the Agreement: 

“Seller
has caused International Analytical Group to perform groundwater sampling and
testing at the Property and Seller has delivered copies of the laboratory
results of such groundwater sampling and testing to Purchaser.  If, as of
the Closing Date, Seller has not obtained written confirmation from the
Miami-Dade County Department of Environmental Resources Management
(“DERM”) that no further action is warranted at the Property with
respect to the Fuel Spill (the “No Further Action Letter”), then:
(i) at the Closing, Seller shall cause AIMCO Properties, L.P. to execute and
deliver to Purchaser an indemnity agreement (in form reasonably acceptable to
Seller and Purchaser), which indemnity agreement shall (x) indemnify Purchaser
from and against all Losses (excluding consequential or punitive damages)
incurred by Purchaser and arising out of the Fuel Spill and (y) expire on the
earlier to occur of (i) the date Seller delivers a copy of the No Further Action
Letter to Purchaser and (ii) one (1) year from the Closing Date; and (ii) for a
period of one (1) year from the Closing, Seller shall at its sole cost and
expense continue to use commercially reasonable diligent efforts to obtain the
No Further Action Letter, including continuing to retain and pay its current
environmental consultant to pursue the No Further Action Letter, filing all
required applications, and timely responding to all inquires and requests from
DERM (provided, however, that in no event shall Seller have any obligation to
commence any legal actions or proceedings to obtain the No Further Action
Letter).  Upon request made by Purchaser from time to time, Seller shall
inform Purchaser of the status and progress for obtaining the No Further Action
Letter.  Seller agrees that Purchaser and its attorneys may, from time to
time, directly contact Paul Thornbury of MACTEC (being Seller’s environmental consultant who is assisting Seller in obtaining the No Further
Action Letter), in order to obtain a status update with respect to the issuance
of the No Further Action Letter;  provided however that in no event shall
Purchaser or its attorneys interfere in any way with Seller’s efforts to obtain
the No Further Action Letter.  Purchaser shall cooperate, at no expense to
itself, with Seller (at Seller’s expense) with respect to obtaining the No
Further Action Letter, including allowing Seller and its representatives and
consultants reasonable access to the Property from time to time (upon reasonable
prior written notice to Purchaser) as may be reasonably necessary in order for
Seller to obtain the No Further Action Letter.  The terms and provisions of
this paragraph shall survive the Closing.”

	Purchaser's Conditions to Closing.
  Section 8.1 of the Agreement is hereby modified as follows:



           
(a)  The following is hereby added at the end of subsection 8.1.5 of the
Agreement: 
“; provided, however, that Seller shall not have any obligation
to cure the Lighting Related Violations and Purchaser shall accept title to the
Property subject to the Lighting Related Violations.” 

           
(b)  Subsection 8.1.6 of the Agreement is hereby deleted in its entirety,
and the following is hereby substituted in lieu thereof: 

           
“8.1.6   Seller shall have delivered to Purchaser (i) the certificates
issued by the appropriate governmental agencies having authority to issue
elevator certificates needed to operate the elevators at the Property, (ii) all
operating manuals for the elevators at the Property and (iii) the final elevator
inspection reports.”   

           
(c)  The following are hereby added as subsections 8.1.7 and 8.1.8 of the
Agreement: 

           
“8.1.7   Seller shall have delivered to Purchaser the life safety
system certification issued by the appropriate governmental agencies having
authority to issue life safety system certifications relating to the fire alarm
system at the Property and all log books and operating manuals with respect
thereto.

           
8.1.8    Seller shall have delivered to Purchaser an assignment
of all roof warranties for the Property together with the original roof
warranties or copies thereof certified by Seller to be true and correct.” 


9.     
Miscellaneous.          
This Amendment may be executed in counterparts, each of which shall be
deemed an original and all of which, when taken together, shall constitute a
single instrument and may be delivered by facsimile transmission, and any such
facsimile transmitted Amendment shall have the same force and effect, and be as
binding, as if original signatures had been delivered.  As modified hereby,
all the terms of the Agreement are hereby ratified and confirmed and shall
continue in full force and effect.

[Signature Page to Follow]


           
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year hereinabove written.

 

Seller:

 

DREXEL BURNHAM LAMBERT REAL ESTATE
ASSOCIATES II LIMITED PARTNERSHIP, a New York limited partnership

 

By: 
DBL PROPERTIES CORPORATION, a New York corporation, its general partner

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

Purchaser:

ADVENIR, INC.,
a
Florida corporation 

By: 
/s/Stephen L. Vecchitto

Name: 
Stephen L. Vecchitto

Title: 
President