FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT



Exhibit 10YY

 

SECOND AMENDMENT TO 
PURCHASE AND SALE
CONTRACT

 

           
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Second
Amendment") is made and entered into this 23rd day of
November, 2009 (the "Second 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 LANDBANC CAPITAL, INC., an Arizona corporation,
having a principal address at 9595 Wilshire Blvd., Suite 900, Beverly Hills,
California  90212 ("Purchaser").  

 

RECITALS:

 

           
WHEREAS, Seller and 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 amended, the
"Contract"), for certain real property situated in the County of
Collin, State of Texas, commonly known as The Fairways 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.                 
Purchase Price.  The Purchase Price in Section 2.2 of
the Contract is reduced by $100,000.00, and all references to Purchase Price are
hereby amended and restated as $11,650,000.00 rather than
$11,750,000.00.

2.                 
Initial Deposit.  In consideration of Seller's execution of
this Second Amendment, Purchaser acknowledges that the Initial Deposit will 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.                 
Feasibility Period.  Section 3.1 of the Contract is
hereby amended and restated in its entirety as follows:

"3.1     
Feasibility Period.  Subject to the terms of Sections
3.3 and 3.4 and the rights of Tenants under the Leases, from the
Effective Date to and including December 18, 2009 (the "Feasibility
Period"), Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees (collectively, "Consultants") shall, at
no cost or expense to Seller, have the right from time to time to enter onto the
Property to conduct and make any and all customary studies,
tests, examinations, inquiries, inspections and investigations of or concerning
the Property, review the Materials and otherwise confirm any and all matters
which Purchaser may reasonably desire to confirm with respect to the Property
and Purchaser's intended use thereof (collectively, the
"Inspections")."

4.                 
Expiration of Feasibility Period.  The second sentence in
Section 3.2 is hereby deleted in its entirety and replaced with the
following sentence: 

"If
Purchaser provides such notice, this Contract shall terminate and be of no
further force and effect subject to and except for the Survival
Provisions."  

5.                 
Closing Date.  The first sentence of Section 5.1 of
the Contract is hereby amended and restated in its entirety as follows:

"The
Closing shall occur on the date that is 30 days after Purchaser's receipt of
Lender's approval of the Loan Assumption and Release 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; provided, however, that in no event shall the Closing
Date be a date later than January 18, 2010."

6.                 
General Provisions.  The following provisions shall apply
with respect to this Second 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 First
Amendment, the terms and conditions of this Second Amendment shall control.


(d)              
This Second 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.

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NOW, THEREFORE, the parties hereto have executed this Second Amendment as of the
Second 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/John Spiegleman

                       
Name:  John Spiegleman

           
            Title: 
Senior Vice President

 

[Purchaser's signature page to follow]

 

 




 

PURCHASER:

 

LANDBANC
CAPITAL, INC.

an
Arizona corporation

 

By:
/s/Larison Clark

Name:
Larison Clark

Title:
    President