Twelfth Amendment - Sienna Bay



Exhibit 10.97

 

TWELFTH AMENDMENT TO PURCHASE AND SALE CONTRACT
 FOR
SIENNA BAY

 

           
This Twelfth Amendment to Purchase and Sale Contract (this
“Amendment”) is made as of February 23, 2010 between CCIP/3 SANDPIPER,
LLC, a Delaware limited liability company ("Seller") and DT SIENNA
BAY, LLC, a Delaware limited liability company (“Purchaser”).

W I T N E S S E T H:

           
WHEREAS, Seller and DT Group Development, Inc (“Contract Vendee”)
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 between Seller and Contract Vendee, (ii) Second
Amendment to Purchase and Sale Contract for Sienna Bay dated as of November 10,
2009 between Seller and Contract Vendee, (iii) Third Amendment to Purchase and
Sale Contract for Sienna Bay dated as of November 12, 2009 between Seller and
Contract Vendee, (iv) Fourth Amendment to Purchase and Sale Contract for Sienna
Bay dated as of November 25, 2009 between Seller and Contract Vendee, (v) Fifth
Amendment to Purchase and Sale Contract for Sienna Bay dated as of December 11,
2009 between Seller and Contract Vendee, (vi) Sixth Amendment to Purchase and
Sale Contract for Sienna Bay dated as of December 28, 2009 between Seller and
Contract Vendee, (vii) Seventh Amendment to Purchase and Sale Contract for
Sienna Bay dated as of January 8, 2010 between Seller and Contract Vendee,
(viii) Eighth Amendment to Purchase and Sale Contract for Sienna Bay dated as of
January 12, 2010 between Seller and Contract Vendee, (ix) Ninth Amendment to
Purchase and Sale Contract for Sienna Bay dated as of January 19, 2010 between
Seller and Contract Vendee, (x) Tenth Amendment to Purchase and Sale Contract
for Sienna Bay dated as of January 28, 2010 between Seller and Contract Vendee,
(xi) Eleventh Amendment to Purchase and Sale Contract for Sienna Bay dated as of
February 16, 2010 between Seller and Contract Vendee, (xii) Assignment and
Assumption of Purchase Agreement between Contract Vendee and Purchaser
(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.     
Modifications to AIMCO Loan Documents.  

           
(a)        The following section is added as
Section 18(e) of the AIMCO Loan Security Instrument:

“(e)     
Senior Lender shall obtain a Phase I environmental report of the Mortgaged
Property no later than thirty (30) days after the one (1) year anniversary of
the date hereof (“Required Phase I”).  Senior Lender has escrowed
funds for payment of costs in connection with the Required Phase I.  The
Required Phase I will be delivered to Borrower and Lender for their
review.  If the Required Phase I reveals that any Remedial Work is
necessary, then Borrower, at its sole cost and expense, shall perform the
Remedial Work.  If any additional sums are necessary to cover the cost of
the Required Phase I, then Borrower shall pay such sums to Senior Lender upon
request.” 

           
(b)        Section 18(j) of the AIMCO Loan
Security Instrument is hereby revised to read: 

“Borrower
shall indemnify, hold harmless and defend (i) Lender and/or AIMCO
Properties, L.P., (ii) any prior owner or holder of the Note,
(iii) the officers, directors, shareholders, partners, employees and
trustees of any of the foregoing, and (iv) the heirs, legal
representatives, successors and assigns of each of the foregoing (collectively,
the “Indemnitees”) from and against all proceedings, claims,
damages, penalties and costs (whether initiated or sought by Governmental
Authorities, private parties or the Senior Lender), including reasonable
Attorneys’ Fees and Costs and remediation costs, whether incurred in connection
with any judicial or administrative process or otherwise, arising directly or
indirectly from any of the following:”

           
(c)        The following sentence is added at
the end of Section 6 of the environmental indemnity agreement being executed in
connection with the making of the AIMCO Loan.

“Notwithstanding
the foregoing, as set forth in Section 18(e) of the Mortgage, Senior Lender
shall obtain a Phase I environmental report of the Premises no later than thirty
(30) days after the one (1) year anniversary of the date hereof (“Required
Phase I”).  If the Required Phase I reveals that any Remedial Work is
necessary, then Indemnitor, at its sole cost and expense, shall perform the
Remedial Work.  If any additional sums are necessary to cover the cost of
the Required Phase I, then Indemnitor shall pay such sums to Senior Lender upon
request”

           
(d)        AIMCO Properties, L.P. is hereby
added an Indemnified Party, as such term is defined in the environmental
indemnity agreement being executed in connection with the making of the AIMCO
Loan.

3.     
Adjournment of the Closing Date.    The Closing
Date is hereby adjourned to March 5, 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.

4.     
Automatic Termination of Contract. Section 3(b) of the Eleventh
Amendment to Purchase and Sale Contract for Sienna Bay, dated as of February 16,
2010, is hereby deleted and replaced with the following:

                       
(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 March 5,
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.

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/John Spiegleman

Name: 
John Spiegleman

Title:
 Senior Vice President

 

Purchaser:

DT
SIENNA BAY, LLC, a Delaware limited liability company

 

By:
DT Florida Income, LP, a Delaware limited partnership, its sole Member

 

By:
DT Florida Income Management, LLC, a Delaware limited liability company, its
General Partner

 

By:
DT Group Development, Inc., a California corporation, its sole Member

 

/s/Daniel
R. Markel

By:
Daniel R. Markel

Its:
CEO and President