FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
Exhibit 10.36
FIFTH AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE
This FIFTH AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is executed this
19th day of January, 2006, between MOR MONTPELIER LLC, FORBES BOULEVARD LLC, and DERRY
COURT LLC (collectively, “Seller”) and ASSET CAPITAL PARTNERS, L.P. (“Purchaser”; and, collectively
with Seller, the “Parties”).
WHEREAS, Seller and Purchaser entered into that certain Agreement of Purchase and Sale dated
November 7, 2005 (the “Original Agreement”), as amended by (i) a First Amendment to Agreement of
Purchase and Sale dated December 12, 2005 (the ''First Amendment”), (ii) a Second Amendment to
Agreement of Purchase and Sale dated December 14, 2005 (the “Second Amendment”), (iii) a Third
Amendment to Agreement of Purchase and Sale dated December 16, 2005 (the “Third Amendment”), and
(iv) a Fourth Amendment to Agreement of Purchase and Sale dated January 9, 2006 (the “Fourth
Amendment”). The Original Agreement as amended by the First Amendment, Second Amendment, Third
Amendment and Fourth Amendment is referred to herein as the “Agreement”.
WHEREAS, the Parties have now agreed to further amend the Agreement as described herein. All
terms not otherwise defined herein shall have the meanings set forth in the Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Anything contained in the Agreement notwithstanding, the definition of “Closing Date” under
Section 1.1(j) of the Agreement is hereby deleted in its entirety and replaced with the following:
“As designated by the Purchaser upon not less than 5 business days’ prior written notice, but no
later than February 28, 2006.”
2. Notwithstanding the provisions of the Original Agreement to the contrary, in order to
facilitate its financing, should Seller and Purchaser be unable to simultaneously close the
purchase and sale of all three properties constituting the Property at such time as Purchaser is
prepared to close the purchase and sale of the Forbes Property, Purchaser shall have the right to
elect to close the purchase and sale of the Forbes Property separate and apart from the Montpelier
Property and the Derry Court Property by delivery of written notice to Seller at least five (5)
business days prior to the anticipated Closing Date (the “Forbes Closing Date”), in which event the
following shall apply:
(a) The Agreement shall be deemed to constitute two separate agreements, one for the
purchase and sale of the Forbes Property on the Forbes Closing Date for a purchase price of
$9,400,000 (the “Forbes Purchase Price”), and a second for the purchase and sale of the
Derry Property and the Montpelier Property for a combined purchase price of $13,300,000 (the
“Montpelier/Derry Purchase Price”), to be consummated on the Closing Date (as defined in the
Agreement).
(b) The entire Xxxxxxx Money shall be applied to the purchase of the Montpelier
Property and Derry Property, and not the Forbes Property.
(c) All other terms of the Agreement shall apply to each transaction as appropriate in
the context of the applicable Property.
3. Except as expressly amended by this Amendment, the Agreement is hereby ratified and
affirmed in all respects. This Amendment may be executed by the parties hereby in counterpart.
4. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto
and their personal representatives, successors, and assigns.
5. This Amendment shall be interpreted and construed in accordance with the laws of the State
of Maryland.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties to this Fifth Amendment to Agreement of Purchase and Sale have set
their hands the day and year first written above.
| WITNESSES: | SELLER: MOR MONTPELIER LLC |
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| By: | /s/ Xxxx Xxxxxxxx | (SEAL) | ||
| Xxxx X. Xxxxxxxx, President | ||||
| FORBES BOULEVARD LLC |
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| By: | /s/ Xxxx Xxxxxxxx | (SEAL) | ||
| Xxxx X. Xxxxxxxx, President | ||||
| DERRY COURT LLC |
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| By: | /s/ Xxxx Xxxxxxxx | (SEAL) | ||
| Xxxx X. Xxxxxxxx, President | ||||
| PURCHASER: ASSET CAPITAL PARTNERS, L.P. |
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| By: | ACC GP, LLC, its general partner | |||
| By: | Asset Capital Corporation, Inc., its Sole member | |||
| By: | /s/ Xxxxx Xxxxxx | (SEAL) | ||
| Xxxxx Xxxxxx, Chief Investment Officer | ||||
