EXHIBIT 10.9
DIVERSIFIED INVESTMENTS PORTFOLIO
FIFTH AMENDMENT TO
PURCHASE AND SALE AGREEMENT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
is made and entered into as of the 23rd day of January, 2004, by and among MHC
OPERATING LIMITED PARTNERSHIP (together with its affiliates, designees and
assigns, the "Purchaser"), an Illinois limited partnership having an address of
Two North Riverside Plaza, Suite 800, Chicago, Illinois 60606, DIVERSIFIED
INVESTMENTS SERVICES, LLC ("Diversified"), a Delaware limited liability company
having an address of 7625 Wisconsin Avenue, Suite 150, Bethesda, Maryland 20814,
and the Sellers, each having an address of c/o Diversified Investments Services,
LLC, 7625 Wisconsin Avenue, Suite 150, Bethesda, Maryland 20814.
R E C I T A L S:
A. The parties hereto have entered into that certain Purchase and
Sale Agreement dated as of December 8, 2003, as amended by that certain First
Amendment to Purchase and Sale Agreement dated December 23, 2003 ("First
Amendment") and that certain Second Amendment to Purchase and Sale Agreement
dated January 21, 2004, that certain Third Amendment to Purchase and Sale
Agreement dated January 22, 2004 and that certain Fourth Amendment to Purchase
and Sale Agreement dated January 23, 2004 (collectively, the "Purchase
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings set forth in the Purchase Agreement.
B. The parties hereto desire to amend the Purchase Agreement as
hereinafter provided.
THEREFORE, the parties hereto agree to amend the Purchase Agreement as
follows:
A G R E E M E N T:
1. Reference is hereby made to that certain Amended and Restated
Subscription Agreement dated as of January, 2004 (the "Subscription Agreement")
by and among Purchaser and Resort Communities, LLC, a Delaware limited liability
company ("Resort"), Diversified Investments-RC, LLC, a Delaware limited
liability company ("DI-RC"), North South Communities, LLC, a Delaware limited
liability company ("North South"), Diversified Investments-NS, LLC, a Delaware
limited liability company ("DI-NS"), Select Resort Communities, LLC, a Delaware
limited liability company ("Select"), Diversified Investments-SRC, LLC, a
Delaware limited liability company ("DI-SRC"), Buccaneer Communities, L.P., a
Delaware limited partnership ("Buccaneer"), Diversified Investments-BC, Inc., a
Delaware corporation, or such other limited liability company as may be
substituted for Diversified Investments-BC, Inc. (collectively, "DI-BC"), Tampa
Bay Communities, L.P., a Delaware limited partnership ("Tampa Bay"), Diversified
Investments-TBC, Inc., a Delaware corporation, or such other limited liability
company as may be substituted for Diversified Investments-TBC, Inc.
(collectively, "DI-TBC"), Diverse Communities, LLC, a Delaware limited liability
company
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("Diverse"), and Diversified Investments - Flozona, LLC, a Delaware limited
liability company ("DI-Flozona").
2. Section 5 A of the Purchase Agreement, as amended by and
subject to the terms of the First Amendment, is hereby amended to read as
follows:
5. A CLOSING DATES. The closing ("Closing") of the
transaction contemplated by this Agreement (i.e., the payment of the
Purchase Price, the transfer and assignment of the Equity Interests,
the transfer of title to the applicable Individual Properties (if
applicable), and the satisfaction of all other terms and conditions of
this Agreement) shall be commenced simultaneously with the closing of
the transaction as contemplated by the Subscription Agreement (as
referenced in Section 9 H hereof) on February 3, 2004 (the "Closing
Date"). Notwithstanding the foregoing, in the event that Seller shall
be unable to comply with Section 9 I by the Closing Date, (i)
Purchaser, subject to obtaining Purchaser's lender's approval, shall
purchase the Goose Creek Equity Interests for a Purchase Price equal to
the allocated Purchase Price for the Goose Creek Property as set forth
below multiplied by 90.32% and shall purchase the Topics Equity
Interests for a Purchase Price equal to the allocated Purchase Price
for the Topics Property as set forth below multiplied by 72.73% and the
balance of the respective Purchase Prices for the Goose Creek Property
and the Topics Property shall be put in escrow with Escrowee and an
allocable portion of the escrow proceeds shall be released each time a
third party tenant-in-common interest shall be acquired and the
applicable Entity Seller shall pay any costs of transfer taxes
associated with such acquisition of the tenant-in-common interest, (ii)
in such event, at Purchaser's option, Purchaser shall have the right to
take a non-exclusive assignment of any agreements which create the
"drag-along" rights for the mandatory sale of such third party
tenant-in-common interest, (iii) if Purchaser is unable to obtain the
consent of Purchaser's lender for either purchase described in clause
5A(i) above, then the Closing for the Goose Creek Property or the
Topics Property (whichever property for which Purchaser lender consent
was denied) shall be delayed until the condition precedent contained in
Section 9 I is satisfied with respect to such property, but in no event
shall the Closing for either the Goose Creek Property or the Topics
Property be delayed beyond February 8, 2004; provided, however, the
Entity Seller for such property that has not closed on or before
February 8, 2004 and Purchaser shall use reasonable efforts to
negotiate an extension of such Closing on mutually agreeable terms,
(iv) the Purchase Price allocated to the Goose Creek Property shall be
$16,248,312 and the Purchase Price allocated to the Topics Property
shall be $3,527,298 and (v) if Purchaser is unable to obtain the
consent of Purchaser's Lender and the Closing is delayed as set forth
in clause 5A(iii) above, an allocable portion of the Earnest Money
based on the Purchase Price allocations shall be held back by Escrowee
as Earnest Money for the Goose Creek Property Closing and the Topics
Property Closing, respectively. Notwithstanding anything contained
herein to the contrary, and subject to the provisions of Section 5C(v)
below, (i) the Closing Date for the Cactus Gardens Property shall occur
upon a date which is mutually agreed upon by the parties hereto but
which is after the expiration or waiver of the defeasance lockout
period for the mortgage loan encumbering such property, but in no event
earlier than January 31, 2004 or later than May 15, 2004, (ii) in such
event the Purchase Price allocated to the Cactus Gardens Property shall
be $7,725,141, and (iii) an allocable portion of the Earnest Money
based on Purchase Price
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allocations shall be held back as Earnest Money for the Cactus Gardens
Closing. If the date of Closing above provided for falls on a Saturday,
Sunday or legal holiday, the Closing Date shall take place on the next
business day.
3. A new Section 15 shall be added to the Purchase Agreement as
follows:
A. Notwithstanding the terms of Section 9 D of this
Agreement, Purchaser and the Entity Sellers that own the Equity
Interests with respect to the Sixth Avenue Property and the
Southernaire Property (the "Sixth Avenue Entity Seller" and the
"Southernaire Entity Seller," respectively) agree to consummate the
Closing with respect to such applicable Equity Interests based on the
following additional terms: (i) the net proceeds from the sale of the
respective Equity Interests shall not be disbursed to the Sixth Avenue
Entity Seller or the Southernaire Entity Seller, respectively, but said
net proceeds shall be held in escrow by Escrowee as security for the
respective Entity Sellers fulfilling certain obligations relating to
the absence of an approved prospectus filed with the Florida Department
of Business and Professional Regulation, (ii) the escrow shall state
that the net proceeds shall not be disbursed to the applicable Entity
Seller until such time as the applicable Entity Sellers have prepared a
PA Prospectus for each such Individual Property and the PA Prospectus
for each such Individual Property has been filed with the Florida
Department of Business and Professional Regulation and has been
delivered to each of the tenants at the Sixth Avenue Property and the
Southernaire Property and the failure of any tenant located at either
the Sixth Avenue Property or the Southernaire Property electing any
remedy as a result of such violation on or before fifteen (15) days
after delivery of such PA Prospectus to all of the tenants of the Sixth
Avenue Property and the Southernaire Property (the "Tenant Deadline"),
and (iii) to the extent any Sixth Avenue Property tenant or any
Southernaire Property tenant elects any remedies arising therefrom on
or before the expiration of the Tenant Deadline then, if such claim
continues to exist after a thirty (30) day cure period afforded to the
applicable Entity Seller, the respective net proceeds shall be utilized
by to reimburse Purchaser for any and all costs associated with such
claims. Following the settlement and payment of any such claims, the
balance of the net proceeds shall be disbursed to the Sixth Avenue
Entity Seller and the Southernaire Entity Seller, respectively. To the
extent there are no tenant claims at one of the Individual Properties
after the expiration of the Tenant Deadline, the net proceeds
applicable to such Individual Property shall be promptly disbursed to
the applicable Entity Seller. In no event shall the net proceeds from
one Individual Property be used to satisfy the claims arising out of
this Section 15 with respect to the other Individual Property.
B. Prior to the Closing, all applicable Entity Sellers
shall deliver to the Florida Department of Business and Professional
Regulation any and all rent notices that said Entity Sellers have
failed to file for previous rental increases which are consistent with
the rent increases actually instituted at the Properties.
4. Section 9 H of the Purchase Agreement is deleted in its
entirety and the following is inserted in lieu thereof:
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Purchaser and certain Sellers shall have entered into that certain (i)
Letter Agreement dated as of the date hereof regarding the formation of various
joint venture entities and (ii) the Subscription Agreement and all conditions
precedent under the Subscription Agreement have been satisfied and closing
thereof shall have been consummated.
5. PURCHASE PRICE. The first four lines of Section 2 of the
Purchase Agreement are deleted in their entirety and the following shall be
inserted in lieu thereof:
The total consideration to be paid by Purchaser to the Sellers
for the Properties is Sixty-Seven Million Three Hundred Fifty
Thousand and 00/100 Dollars ($67,350,000.00) less an amount
equal to fifty percent (50%) of the Defeasance Costs (as
hereinafter defined) subject to adjustment as set forth
hereinafter (the "Purchase Price"), which shall be paid as
follows:
6. EFFECT. Except as amended herein, all terms and provisions
contained in the Purchase Agreement shall remain in full force and effect.
7. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, all of which taken together shall constitute one and the same
agreement.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
respective dates set forth below.
WITNESSES: PURCHASER:
_____________________________________ MHC OPERATING PARTNERSHIP,
Name:________________________________ an Illinois limited partnership
_____________________________________
Name:________________________________ By: MANUFACTURED HOME COMMUNITIES,
INC., a Maryland corporation,
its general partner
By:___________________________
Name:______________________
Title:_____________________
Date: January ___, 2004
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WITNESSES:
SELLERS:
_____________________________________ COACHWOOD COLONY MHP, LLC, a Florida
Name:________________________________ limited liability company
_____________________________________ By: DIVERSIFIED INVESTMENTS -
Name:________________________________ COACHWOOD COLONY MHP, LLC, a
Florida limited liability
company, as its Sole and
Managing Member
By:_____________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS - COACHWOOD
COLONY MHP, LLC, a Florida
limited liability company
_____________________________________
Name:________________________________
_____________________________________ By:_________________________________
Name:________________________________ Barry L. Haase
Manager
WITNESSES:
SHANGRI-LA MOBILE HOME PARK, L.P., a
Delaware limited partnership,
authorized to transact business in
_____________________________________ the State of Florida as SHANGRI-LA
Name:________________________________ MOBILE HOME PARK OF LARGO, LTD.
_____________________________________ By: DIVERSIFIED INVESTMENTS -
Name:________________________________ SHANGRI-LA, INC., a Delaware
corporation, as its General
Partner
By:_____________________________
Barry L. Haase
Chairman
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WITNESSES:
DIVERSIFIED INVESTMENTS - SHANGRI-LA,
INC., a Delaware corporation
_____________________________________
Name:________________________________ By:_________________________________
_____________________________________ Barry L. Haase
Name:________________________________ Chairman
WITNESSES:
TAMPA BAY COMMUNITIES, L.P., a
Florida limited partnership
_____________________________________
Name:________________________________ By: Diversified Investments - TBC,
_____________________________________ Inc., a Florida corporation, as
Name:________________________________ its General Partner
By:______________________________
Barry L. Haase
CEO
WITNESSES:
SIXTH AVENUE, LLC, a Florida limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS - SIXTH
_____________________________________ AVENUE LLC, a Florida limited
Name:________________________________ liability company, as its Sole
and Managing Member
By:______________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS - SIXTH
AVENUE, LLC, a Florida limited
liability company
_____________________________________
Name:________________________________ By: ________________________________
_____________________________________ Barry L. Haase
Name:________________________________ Manager
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WITNESSES:
SOUTHERNAIRE MHP, LLC, a Florida
limited liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS -
_____________________________________ SOUTHERNAIRE, LLC, a Florida
Name:________________________________ limited liability company, as its
Sole and Managing Member
By:______________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS -
SOUTHERNAIRE, LLC, a Florida limited
liability company
_____________________________________
Name:________________________________
_____________________________________ By: _________________________________
Name:________________________________ Barry L. Haase
Manager
WITNESSES:
TERRA CEIA, LLC, a Florida limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS - TERRA
_____________________________________ CEIA, LLC, a Florida limited
Name:________________________________ liability company, as its Sole
and Managing Member
By: _____________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS - TERRA CEIA,
LLC, a Florida limited liability
company
_____________________________________
Name:________________________________
_____________________________________ By: _________________________________
Name:________________________________ Barry L. Haase
Manager
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WITNESSES:
TOPICS RVP, LLC, a Florida limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS-TOPICS RVP,
_____________________________________ LLC, a Florida limited liability
Name:________________________________ company, as its Sole and Managing
Member
By: ________________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS -TOPICS RVP,
LLC, a Florida limited liability company
_____________________________________
Name:________________________________ By: ____________________________________
_____________________________________ Barry L. Haase
Name:________________________________ Manager
WITNESSES:
GOOSE CK, LLC, a North Carolina limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS - GC, LLC, a
_____________________________________ North Carolina limited liability
Name:________________________________ company, as its Sole Member
By: EAST WEST COMMUNITIES, LLC, a
Delaware limited liability
company, as its Sole Member
By: DIVERSIFIED INVESTMENTS -
EW, LLC, a Delaware limited
liability company, as its
Managing Member
By: ________________________
Barry L. Haase
Managing Member
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WITNESSES:
DIVERSIFIED INVESTMENTS - GC, LLC, a
North Carolina limited liability
company
_____________________________________
Name:________________________________ By: EAST WEST COMMUNITIES, LLC, a
_____________________________________ Delaware limited liability
Name:________________________________ company, as its Sole Member
By: DIVERSIFIED INVESTMENTS - EW,
LLC, a Delaware limited
liability company, as its
Managing Member
By: ____________________________
Barry L. Haase
Managing Member
WITNESSES:
WATERWAY RV, LLC, a Delaware limited
liability company
_____________________________________
Name:________________________________ By: SIERRA LAKES, L.L.C., a Delaware
_____________________________________ limited liability company, as its
Name:________________________________ Sole and Managing Member
By: DIVERSIFIED INVESTMENTS
PARTNERS, LLC, a Delaware
limited liability company, as
its Managing Member
By: ____________________________
Barry L. Haase
Managing Member
WITNESSES:
SIERRA LAKES, L.L.C., a Delaware limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS PARTNERS,
_____________________________________ LLC, a Delaware limited liability
Name:________________________________ company, as its Managing Member
By: ________________________________
Barry L. Haase
Managing Member
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WITNESSES:
CACTUS GARDENS RV, LLC, an Arizona
limited liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS - CACTUS
_____________________________________ GARDENS, LLC, an Arizona limited
Name:________________________________ liability company, as its Managing
Member
By: ________________________________
Barry L. Haase
Manager
WITNESSES:
DIVERSIFIED INVESTMENTS - CACTUS
GARDENS, LLC, an Arizona limited
liability company
_____________________________________
Name:________________________________
_____________________________________ By: ____________________________________
Name:________________________________ Barry L. Haase
Manager
WITNESSES:
DESERT PARADISE RV, LLC, an Arizona
limited liability company
_____________________________________
Name:________________________________ By: SIERRA LAKES, L.L.C., a Delaware
_____________________________________ limited liability company, as its
Name:________________________________ Sole and Managing Member
By: DIVERSIFIED INVESTMENTS
PARTNERS, LLC, a Delaware
limited liability company, as
its Managing Member
By: ____________________________
Barry L. Haase
Managing Member
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WITNESSES:
SUNI SANDS, LLC, an Arizona limited
liability company
_____________________________________
Name:________________________________ By: DIVERSIFIED INVESTMENTS - SUNI
_____________________________________ SANDS, LLC, an Arizona limited
Name:________________________________ liability company, as its Sole and
Managing Member
By: ________________________________
Barry L. Haase
Manager
WITNESSES: DIVERSIFIED INVESTMENTS - SUNI SANDS,
LLC, an Arizona limited liability
company
_____________________________________ By: ____________________________________
Name:________________________________ Barry L. Haase
_____________________________________ Manager
Name:________________________________
WITNESSES: DIVERSIFIED INVESTMENTS SERVICES, LLC, a
Delaware limited liability company
_____________________________________ By: _________________________________
Name:________________________________ Name: Barry L. Haase
_____________________________________ Title: Manager
Name:________________________________
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