THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
Exhibit 10.34
THIRD AMENDMENT TO
AGREEMENT OF PURCHASE AND SALE
AGREEMENT OF PURCHASE AND SALE
This THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE (this “Amendment”) is executed this
16th day of December, 2005, 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”), pursuant to which Seller agreed to sell, and Purchaser
agreed to purchase, the real property described therein, subject to the terms thereof.
WHEREAS, pursuant to that certain First Amendment to Agreement of Purchase and Sale dated
December 12, 2005 (the “First Amendment”), the Parties agreed to extend the Due Diligence Period
until December 14, 2005 at 5:00 p.m. eastern standard time.
WHEREAS, pursuant to that certain Second Amendment to Agreement of Purchase and Sale dated
December 14, 2005 (the “Second Amendment”), the Parties agreed to extend the Due Diligence Period
until December 16, 2005 at 5:00 p.m. eastern standard time. The Original Agreement, First
Amendment and Second Amendment are collectively 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:
Purchase Price Modification.
1. Anything contained in the Agreement notwithstanding, the Purchase Price under Section
1.1(f) of the Agreement is hereby reduced from Twenty-Three Million Two Hundred Thousand Dollars
($23,200,000.00) to Twenty-Two Million Seven Hundred Thousand Dollars ($27,700,000.00).
Expiration of Due Diligence.
2. Purchaser and Seller acknowledge and agree that, as of the date hereof, the Due Diligence
Period under Section 2.2 of the Agreement has expired. Purchaser hereby waives its right to object
to any remaining issues and/or objections pertaining to the physical status of the Property on the
date hereof, and Purchaser shall have no further right to terminate this Agreement pursuant to said
Section 2.2 of the Agreement.
Increase in Deposit.
3. Anything contained in Sections 1.1(g) and 1.3 of the Agreement notwithstanding, the Parties
agree that the Additional Deposit under Section 1.1(g), due at the expiration of the Due Diligence
Period under Section 1.3 of the Agreement, is hereby increased from Three Hundred Fifty Thousand
Dollars ($350,000.00) to Six Hundred Fifty Thousand Dollars ($650,000.00) (bringing the total
Xxxxxxx Money under the Agreement to $1,000,000). The Additional Deposit shall be payable by
Purchaser to Escrow Agent within three (3) Business Days of the date hereof, pursuant to Section
1.3 of the Agreement. In accordance with the expiration of the Due Diligence Period on the date
hereof, all Xxxxxxx Money paid or to be paid by Purchaser to Escrow Agent under the Agreement shall
become non-refundable to Purchaser, except as otherwise expressly provided in the Agreement.
Defeasance Election and Assumption of Existing Loans.
4. Pursuant to Section 2.4 of the Agreement, the Parties acknowledge that Purchaser has
undertaken a Defeasance Election with respect to the Forbes Property, and shall assume the Existing
Loans with respect to the Derry Property and the Montpelier Property.
Purchase Price Allocation - “Exhibit I” to the Agreement.
5. Anything contained in the Agreement notwithstanding, the following shall constitute
“Exhibit I - Purchase Price Allocation” to the Agreement, pursuant to Section 5.2(e) of the
Agreement:
"Exhibit I | ||||
Purchase Price Allocation | ||||
Forbes Property: |
$ | 9,400,000.00 | ||
Derry Property: |
$ | 6,500,000.00 | ||
Montpelier Property: |
$ | 6,800,000.00" |
Form of Owner’s Affidavit - “Exhibit K” to the Agreement.
6. Anything contained in the Agreement notwithstanding, Exhibit A attached hereto,
entitled “Form of Owner’s Affidavit”, shall constitute “Exhibit K - Form of Owner’s
Affidavit” to the Agreement.
7. 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.
8. This Amendment shall be binding upon and shall inure to the benefit of the parties hereto
and their personal representatives, successors, and assigns.
9. 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 Third 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 | ||||