Eleventh Amendment - Sienna Bay



Exhibit 10.96

 

ELEVENTH AMENDMENT TO PURCHASE AND SALE CONTRACT
 FOR
SIENNA BAY

 

           
This Eleventh Amendment to Purchase and Sale Contract (this
“Amendment”) is made as of February 16, 2010 between CCIP/3 SANDPIPER,
LLC, a Delaware limited liability company ("Seller") and DT GROUP
DEVELOPMENT, INC., a California Corporation (“Purchaser”).

W I T N E S S E T H:

           
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract, dated as of August 14, 2009, as amended by (i) First Amendment to
Purchase and Sale Contract for Sienna Bay dated as of October 8, 2009, (ii)
Second Amendment to Purchase and Sale Contract for Sienna Bay dated as of
November 10, 2009, (iii) Third Amendment to Purchase and Sale Contract for
Sienna Bay dated as of November 12, 2009, (iv) Fourth Amendment to Purchase and
Sale Contract for Sienna Bay dated as of November 25, 2009, (v) Fifth Amendment
to Purchase and Sale Contract for Sienna Bay dated as of December 11, 2009, (vi)
Sixth Amendment to Purchase and Sale Contract for Sienna Bay dated as of
December 28, 2009, (vii) Seventh Amendment to Purchase and Sale Contract for
Sienna Bay dated as of January 8, 2010, (viii) Eighth Amendment to Purchase and
Sale Contract for Sienna Bay dated as of January 12, 2010, (ix) Ninth Amendment
to Purchase and Sale Contract for Sienna Bay dated as of January 19, 2010 and
(x) Tenth Amendment to Purchase and Sale Contract for Sienna Bay dated as of
January 28, 2010 (collectively, the “Contract”), with respect to the sale
of that certain property known as Sienna Bay, having an address at 10501 3rd Street North, St. Petersburg, FL 33716, and as
more particularly described in the Contract; and

           
WHEREAS, Seller and Purchaser desire to amend certain provisions of the
Contract as hereinafter set forth.

           
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the sum of $10.00 and other good and valuable consideration, the
mutual receipt and legal sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:

1.     
Capitalized Terms.     Capitalized terms used
in this Amendment shall have the meanings given to them in the Contract, except
as expressly otherwise defined herein.

2.     
Additional Deposits.  

                       
(a)        On or prior to 5:00 p.m. on
February 16, 2010 (time being of the essence), Purchaser shall wire an
additional deposit of $500,000 directly to Seller pursuant to the wire
instructions attached hereto as Exhibit A.  Upon Seller’s receipt of
such additional deposit monies, the total Deposit shall be $2,000,000, all of
which is being held directly by Seller (i.e., not in escrow).

                       
(b)        On or prior to 5:00 p.m. on
February 17, 2010 (time being of the essence), Purchaser shall wire an
additional deposit of $500,000 directly to Seller pursuant to the wire
instructions attached hereto as Exhibit A.  Upon Seller’s receipt of
such additional deposit monies, the total Deposit shall be $2,500,000, all of
which is being held directly by Seller (i.e., not in escrow).

                       
(c)        Seller and Purchaser agree that
the entire Deposit is fully non-refundable and shall be retained by Seller if
the Contract is terminated for any reason, except if Purchaser terminates the
Contract in accordance with an pursuant to the terms of any of Sections 8.1,
10.2, 11.1 or 12.1 of the Contract.

3.     
Automatic Termination of Contract. Section 2 of the Tenth
Amendment to Purchase and Sale Contract for Sienna Bay, dated as of January 28,
2010, is hereby deleted and replaced with the following:

           
(a)        If Seller has not received (x) the
additional $500,000 deposit from Purchaser pursuant to Section 2(a) above by the
time stated in Section 2(a) or (y) the additional $500,000 deposit from
Purchaser pursuant to Section 2(b) above by the time stated in Section 2(b),
then the failure to timely post any of such additional deposit monies shall
constitute an immediate default by Purchaser under the Contract (as amended by
this Amendment) without any notice or cure period, the Contract (as amended by
this Amendment) shall immediately terminate, Seller shall retain the full
Deposit (i.e., $1,500,000 or $2,000,000, as the case may be) then being held by
Seller, and neither party shall have any further rights or obligations under the
Contract (as amended by this Amendment) , except for those provisions that
expressly survive a termination of the Contract.

                       
(b)        If Purchaser defaults in its
obligation to close on the purchase of the Property pursuant to the terms of the
Contract (as amended by this Amendment) on or prior to 5:00 p.m. on February 23,
2010 (time being of the essence), then such failure to timely close shall
constitute an immediate default under the Contract (as amended by this
Amendment), the Contract (as amended by this Amendment) shall immediately
terminate, Seller shall retain the full Deposit (i.e., $2,500,000) then held by
Seller, and neither party shall have any further rights or obligations under the
Contract (as amended by this Amendment) , except for those provisions that
expressly survive a termination of the Contract.

4.     
Adjournment of the Closing Date.    The Closing
Date is hereby adjourned to February 23, 2010.  TIME IS OF THE ESSENCE with
respect to Purchaser’s and Seller’s obligations to close the transactions
contemplated by the Contract (as amended by this Amendment) on such
date.

5.     
Waiver.          
Purchaser hereby waives and releases any and all (i) claims that Purchaser may
have against Seller as of the date hereof with respect to the Contract (as
amended by this Amendment), and (ii) defenses that Purchaser may have as of the
date hereof against Seller with respect to Seller’s enforcement of the terms of
the Contract (as amended by this Amendment).  Purchaser represents that (x)
to the best of its acknowledge, as of the date hereof Seller is not in default
of any of the terms and provisions of the Contract and (y) Seller has, at all
times, acted in good faith with respect to the Contract (as amended by this
Amendment) and all negotiations with respect thereto
and has cooperated fully with all requests of Purchaser with respect to the
Property and the terms of the Contract (as amended by this Amendment). 


6.     
Miscellaneous.          
This Amendment (a)  supersedes all prior oral or written communications
and agreement between or among the parties with respect to the subject matter
hereof, and (b) may be executed in counterparts, each of which shall be
deemed an original and all of which, when taken together, shall constitute a
single instrument and may be delivered by facsimile transmission, and any such
facsimile transmitted Amendment shall have the same force and effect, and be as
binding, as if original signatures had been delivered.  As modified hereby,
all the terms of the Contract are hereby ratified and confirmed and shall
continue in full force and effect.


           
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year hereinabove written.

 

Seller:

 

CCIP/3
SANDPIPER, LLC, a Delaware limited liability company

 

By:
   CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/3, LP, a Delaware
limited partnership, its member

 

By:   
CONCAP EQUITIES, INC., a Delaware corporation, its general partner 

 

 

By: 
/s/Trent A. Johnson

Name: 
Trent A. Johnson

Title: 
Vice President

 

Purchaser:

DT
GROUP DEVELOPMENT, INC, a California
corporation

 

By: 
/s/Jim Markel
Name:  Jim Markel
Title:  General
Partner

 


EXHIBIT A

 

Wire Instructions

 

 

	
Bank: 

	
Wachovia 
(Charlotte, NC)

	
ABA
#:  
	
053-000-219 


	
Account
Number:
	
2000010968907

	
Account
Name:  
	
AIMCO
Properties Partnership Concentration Account

	
Reference: 

	
CCIP/3
Sandpiper, LLC - 005681 sale deposit