Ex. 10.1 Reinstatement of Agreement of Purchase & Sale


    
      

    

     

                                                                                                Exhibit
      10.1

     

    
 

    REINSTATEMENT
      OF AND FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND
      SALE

     

    THIS
      REINSTATEMENT OF AND FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND
      SALE
      (this
“Amendment”)
      is
      made effective as of October 27, 2006 by and between DIXON-MILL
      ASSOCIATES I (PHASE ONE) LIMITED PARTNERSHIP,
      DIXON-MILL
      ASSOCIATES II (PHASE TWO) LIMITED PARTNERSHIP,
      and
DIXON-MILL
      ASSOCIATES III (PHASE THREE) LIMITED PARTNERSHIP,
      each a
      New Jersey limited partnership (collectively, “Seller”),
      and
RMPC
      DIXON LLC,
      a
      Delaware limited liability company (“RMPC”)
      and
RGD
      HOLDING COMPANY, LLC,
      a
      Delaware limited liability company (“RGD”,
      and
      together with RMPC, “Purchaser”).

     

    BACKGROUND

     

    Seller
      and RMPC entered into a certain Agreement of Purchase and Sale dated as of
      April
      3, 2006 and effective as of March 1, 2006 (the “Original
      Agreement”),
      as
      amended by those certain (i) First Amendment to Agreement of Purchase and Sale
      effective as of April 21, 2006 by and between Seller and RMPC (the “First
      Amendment”);
      (ii)
      Second Amendment to Agreement of Purchase and Sale effective as of April 21,
      2006 by and between Seller and RMPC (the “Second
      Amendment”);
      (iii)
      Third Amendment to Agreement of Purchase and Sale effective as of April 27,
      2006
      by and between Seller and RMPC (the “Third Amendment”)
      and
      (iv) Reinstatement of and Fourth Amendment to Agreement of Purchase and Sale
      effective as of May 24, 2006 by and between Seller and RMPC (the “Fourth
      Amendment”
and
      collectively with the Original Agreement, the First Amendment, the Second
      Amendment, and the Third Amendment, the “Agreement”)
      by and
      through which Seller agreed to sell to Purchaser and Purchaser agreed to
      purchase from Seller certain real and personal property in Jersey City, New
      Jersey known as the Dixon Mills Apartments and as more particularly described
      in
      the Agreement. By Assignment and Assumption Agreement date May 26, 2006, RMPC
      assigned all of its rights under the Agreement to RGD. By letter dated October
      13, 2006 (the “Termination
      Letter”),
      Purchaser terminated the Agreement. Seller and Purchaser now desire to reinstate
      and amend the Agreement as set forth herein. Capitalized terms not otherwise
      defined herein will have the meanings assigned to such terms in the Original
      Agreement.

     

    AGREEMENTS

     

    NOW,
      THEREFORE,
      for and
      in consideration of the covenants and conditions set forth in the Agreement,
      and
      other good and valuable consideration, the receipt and sufficiency of which
      are
      hereby acknowledged, and intending to be legally bound hereby, Seller and
      Purchaser agree as follows:

     

    1.  Purchaser
      hereby rescinds the Termination Letter. The parties reinstate all of the terms
      and conditions of the Agreement, as amended hereby. Except as expressly amended
      hereby, the Agreement is in full force and effect and is hereby ratified and
      reaffirmed in its entirety. To the extent of any conflict between the Agreement
      and this Amendment, this Amendment will govern and prevail.

     

    2.  The
      Purchase Price is Sixty Nine Million Four Hundred Sixty Thousand and 00/100
      Dollars ($69,460,000.00).

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    3.  The
      parties acknowledge that Seller will deposit on the Closing Date in escrow
      (the
“Escrow”)
      with
      Land Title Agency, Inc. (an agent of LandAmerica Financial Group, Inc.) or
      another escrow agent (in either case, the “Escrow
      Agent”)
      selected by Seller and approved by Purchaser, which approval shall not be
      unreasonably withheld, delayed or conditioned, the amount of Two Million and
      00/100 Dollars ($2,000,000.00) (the “Escrow
      Amount”)
      pursuant to that Special Escrow Agreement between Seller and the Redevelopment
      Agency substantially in the form attached hereto as Exhibit
      A
      (the
“Special
      Escrow Agreement”),
      which
      Seller will cause prior to Closing to be expressly assignable to Purchaser
      with
      respect to the Purchaser’s Escrow Share (as defined below). Seller will at
      Closing irrevocably assign, pursuant to a written agreement (the “Escrow
      Assignment”)
      mutually acceptable to Seller and Purchaser and executed at Closing, Seller’s
      right, title and interest to the first funds to be released to Seller from
      the
      Escrow up to and including Five Hundred Thousand Dollars ($500,000.00),
      (“Purchaser’s
      Principal Share”)
      plus
      interest which shall have accrued thereon (together with the Purchaser’s
      Principal Share, the “Purchaser’s
      Escrow Share”).
      Such
      assignment shall be free and clear of any liens, charges, encumbrances or claims
      whatsoever, except for the rights of the Redevelopment Agency under the Special
      Escrow Agreement. Seller will cause the Escrow Agent to deliver to the Purchaser
      at Closing an acknowledgement of such assignment, and an irrevocable agreement
      by Escrow Agent to deliver the Purchaser’s Escrow Share to Purchaser in
      accordance with this Section 3 ( the “Escrow
      Agent Letter”).
      Notwithstanding anything to the foregoing contained in this Section 3, in the
      event the Redevelopment Agency agrees prior to the Closing Date to revise the
      form of the Special Escrow Agreement such that the Escrow Amount is reduced
      (the
“Escrow
      Reduction”),
      then
      the Purchaser’s Principal Share and the Purchase Price will each be reduced by
      the lesser of (a) $500,000.00 and (b) the amount of the Escrow
      Reduction.

     

    4.  The
      Deposit (a) is One Million Seven Hundred Fifty Eight Thousand Four Hundred
      Eighty One and 00/100 ($1,758,481.00), (b) will be delivered to the Title
      Company not later than two (2) Business Days following the effective date of
      this Amendment, and (c) will be held by the Title Company and disbursed in
      accordance with the Agreement. No further Deposit will be required of
      Purchaser.

     

    5.  The
      last
      sentence of Section 8.1(a)(vii) of the Original Agreement and the last sentence
      of Section 8.2(g) of the Original Agreement are deleted. Notwithstanding
      anything to the contrary contained in the Agreement and this Amendment, if
      Seller has not by the Closing Date (A) obtained Seller’s LP Consent and the
      Restrictions Release and (B) delivered the Escrow Assignment and caused the
      delivery of the Escrow Agent Letter, then Purchaser may, at Purchaser’s option
      and as Purchaser’s sole and exclusive remedy, terminate the Agreement by written
      notice to Seller of such termination pursuant to this Section 5, in which case
      (i) Seller will pay to Purchaser within ten (10) Business Days of such
      termination $500,000 for a portion of its actual out-of-pocket expenses paid
      or
      owed to third parties in connection with this transaction (including without
      limitation expenses in connection with the Agreement, due diligence expenses
      and
      expenses relating to Purchaser’s equity and debt financing initiatives) (ii)
      Purchaser will have the right to receive a prompt refund of the Deposit, and
      (iii) except with respect to the obligations and indemnities set forth in the
      Agreement that survive termination, the Agreement shall be null and void and
      the
      parties shall have no further obligation to each other hereunder.

     

     

    
      
         

      

      
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    6.  The
      Closing Date is November 14, 2006. Notwithstanding anything in Section 9 of
      the
      Original Agreement, Section 5 of the Fourth Amendment or anything else in the
      Agreement to the contrary, there will be no further extension of the Closing
      Date for any reason. Seller represents that it has complied or will comply
      in a
      timely manner with (or has obtained or will obtain a waiver of) the notice
      requirements for the redemption of the Bonds on November 15, 2006.

     

    7.  Notwithstanding
      the revised Closing Date set forth in this Amendment, Purchaser’s obligation for
      Monthly Rental Payments pursuant to Section 7.1(b) of the Original Agreement
      shall continue to cease as of July 14, 2006.

     

    8.  In
      order
      for the Title Company to insure under the owner’s and lender’s title policy
      against any delinquent amounts owed with respect to those certain Franchise
      Ordinance No. 166 and Franchise Ordinance No. 167 set forth in the Title
      Commitment, Seller will, at Seller’s option, either (a) provide by Closing a
      letter from the City of Jersey City reasonably satisfactory to the Title Company
      or (b) enter into a reasonable indemnity or escrow arrangement with the Title
      Company in order to induce the Title Company to provide such insurance
      coverage.

     

    9.  Notwithstanding
      Section 2.1(gg) of the Original Agreement, Personal Property to be conveyed
      by
      Seller to Purchaser shall include the personal property listed on Exhibit
      B
      attached
      hereto (which personal property will include any of Seller’s rights, to the
      extent assignable, with respect to software stored on any computer hardware
      listed thereon).

     

    10.  This
      Amendment shall be governed by and construed in accordance with the laws of
      the
      State of New Jersey.

     

    11.  This
      Amendment shall be binding upon the parties and their respective successors
      and
      permitted assigns.

     

    12.  To
      facilitate execution, this Amendment may be executed in as many counterparts
      as
      may be required. It shall not be necessary that the signatures on behalf of
      all
      parties appear on each counterpart hereof. All counterparts hereof shall
      collectively constitute a single agreement. For purposes of this Amendment,
      facsimile signatures shall be deemed originals. Notwithstanding any other
      provision of this Amendment, the parties hereto agree that the execution and
      delivery of this Amendment and any amendments hereto may be conducted by
      electronic means as provided by the Uniform Electronic Transactions Act,
      N.J.S.A. 12A:12-1 et
      seq.

     

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    IN
      WITNESS WHEREOF, this Amendment has been executed by the duly authorized
      representatives of the parties hereto as of the date designated
      below.

     

    
      	 	 	
              Seller:

               

              DIXON-MILL
                ASSOCIATES I (PHASE ONE) LIMITED PARTNERSHIP, a
                New Jersey limited partnership

               

              BY: DIXON
                VENTURE CORP., its general partner

               

            
	 	 	
              By:
                /s/ Mark M. Bava      

            
	 	 	
              Mark
                M. Bava, Executive Vice President

              Duly
                Authorized

            
	 	 	 


    

    


    
      	 	 	
              DIXON-MILL
                ASSOCIATES II (PHASE TWO) LIMITED PARTNERSHIP, a
                New Jersey limited partnership

               

              BY: DIXON
                VENTURE CORP., its general partner

               

            
	 	 	
              By:
                /s/ Mark M. Bava      

            
	 	 	
              Mark
                M. Bava, Executive Vice President

              Duly
                Authorized

            


    

    


    
      	 	 	
              DIXON-MILL
                ASSOCIATES III (PHASE THREE) LIMITED PARTNERSHIP,
                a
                New Jersey limited partnership

               

              BY: DIXON
                VENTURE CORP., its general partner

               

               

                    By:
                /s/ Mark M.
                Bava

                         
                Mark
                M. Bava, Executive Vice President

                   
     
                Duly Authorized

            
	 	 	
               

              Purchaser:

               

              RMPC
                DIXON, LLC,
                a
                Delaware limited liability company

               

               

              By:
                /s/ Timothy M. Jones

                
                Timothy M. Jones,
                Manager

                    
Duly
                Authorized

            


    

    


     

     

    
      
         

      

      
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              Purchaser:

               

              RGD
                HOLDING COMPANY LLC,
                a
                Delaware limited liability company

               

               

              By:
                /s/ Timothy M. Jones

              Timothy
                M. Jones

              Duly
                Authorized

              Authorized
                Agent

            


    

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

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    EXHIBIT
      A

    


    SPECIAL
      ESCROW AGREEMENT

    


    [see
      attached]

    



    
      
         

      

      
         

        
          

        

      

      
         

        
        

      

    



    EXHIBIT
      B

    


    SCHEDULE
      OF PERSONAL PROPERTY

    


    [see
      attached]