FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT



Exhibit 10BBB

 

FIFTH AMENDMENT TO 
PURCHASE AND SALE CONTRACT

 

           
THIS FIFTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Fifth
Amendment") is made and entered into this 10th day of February, 2010
(the "Fifth Amendment Date"), by and among THE NEW FAIRWAYS, L.P.,
a Delaware limited partnership, having an address at 4582 South Ulster Street
Parkway, Suite 1100, Denver, Colorado 80237 ("Seller") and ARAGON
2009/FAIRWAY, LLC, a Texas limited liability company, having a principal address
at 9595 Wilshire Blvd., Suite 900, Beverly Hills, California  90212
("Purchaser").  

 

RECITALS:

 

           
WHEREAS, Seller and LandBanc Capital, Inc., an Arizona corporation
("Original Purchaser") entered into that certain Purchase and Sale
Contract, dated October 19, 2009, as amended by that certain First Amendment to
Purchase and Sale Contract, dated November 20, 2009, as further amended by that
certain Second Amendment to Purchase and Sale Contract, dated November 23, 2009,
as further amended by that certain Third Amendment to Purchase and Sale Contact,
dated December 18, 2009, and as assigned by Original Purchaser to Purchaser by
that certain Assignment and Assumption of Purchase and Sale Contract, dated
January 20, 2010, as further amended by that certain Fourth Amendment to
Purchase and Sale Contact, dated January 28, 2010 (as amended and assigned, the
"Contract"), for certain real property situated in the County of
Collin, State of Texas, commonly known as The Fairway Apartments, and more
specifically described in the Contract (the "Property"); and

 

           
WHEREAS, Seller and Purchaser desire to amend the Contract on the terms and
conditions set forth below.

 

AGREEMENT:

 

           
NOW, THEREFORE, in consideration of the mutual covenants set forth in the
Contract and herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Seller and Purchaser agree to
amend the Contract as follows:

 

1.                 
Closing Date.  Section 5.1 of the Contract is hereby
amended and restated in its entirety as follows:

"The
Closing shall occur on February 26, 2010 at the time set forth in Section
2.2.4 (the "Closing Date") through an escrow with Escrow
Agent, whereby Seller, Purchaser and their attorneys need not be physically
present at the Closing and may deliver documents by overnight air courier or
other means.  Notwithstanding the foregoing to the contrary, upon at least
ten (10) Business Days prior written notice to Purchaser, the Closing Date may
be extended without penalty at the option of Seller to a date not later than
forty five (45) days following the Closing Date specified in the first sentence
of this Section 5.1 for the purpose of responding to and resolving any
comments received from the Securities and Exchange
Commission with regard to Seller's filed information statement relating to the
transaction contemplated herein."

2.                 
Additional Deposit.  In connection with this Fifth Amendment,
on or before February 16, 2010, Purchaser shall remit to Escrow Agent the amount
of $100,000.00, which amount when received by Escrow Agent shall be added to the
Deposit hereunder and shall be non-refundable under all circumstances other than
(i) a default by Seller pursuant to Section 10.2 of the Contract, or (ii)
an event of condemnation or eminent domain pursuant to Article XII of the
Contract.

3.                 
General Provisions.  The following provisions shall apply
with respect to this Fifth Amendment:

(a)               
Except as modified herein, the Contract is in full force and effect and
is hereby ratified by Purchaser and Seller.

(b)              
Capitalized terms not defined herein shall have the same meaning as set
forth in the Contract.

(c)               
In the event of any conflict between the Contract and this Fifth
Amendment, the terms and conditions of this Fifth Amendment shall control.


(d)              
This Fifth Amendment may be executed in counterparts, each of which (or
any combination of which) when signed by all of the parties shall be deemed an
original, but all of which when taken together shall constitute one
agreement.  Executed copies hereof may be delivered by telecopier or
electronic mail and upon receipt shall be deemed originals and binding upon the
parties hereto, and actual originals shall be promptly delivered
thereafter.

[remainder of this page intentionally left blank]

 

 




           
NOW, THEREFORE, the parties hereto have executed this Fifth Amendment as of the
Fifth Amendment Date.

 

 

SELLER:

 

THE
NEW FAIRWAYS, L.P.,

a
Delaware limited partnership

 

By:      
DAVIDSON GROWTH PLUS GP 

           
LIMITED PARTNERSHIP,

           
a Delaware limited partnership,

           
its general partner

 

           
By:       DAVIDSON GROWTH PLUS GP 

                       
CORPORATION,

                       
a Delaware corporation,

                       
its general partner

 

                       
By:  /s/Trent A. Johnson

                       
Name:  Trent A. Johnson

                       
Title:  Vice President

 

[Purchaser's signature page to follow]

 

 




 

PURCHASER:

 

ARAGON
2009/FAIRWAY, LLC, 

a
Texas limited liability company

 

By:      
Aragon Holdings, LLC, a California limited 

           
liability company, its Manager

 

By: 
/s/Larison Clark

Name: 
Larison Clark

Title: 
President