FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT



Exhibit 10ZZ

 

THIRD AMENDMENT TO 
PURCHASE AND SALE CONTRACT

 

           
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Third
Amendment") is made and entered into this 18th day of December, 2009
(the "Third 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, and as further amended by
that certain Second Amendment to Purchase and Sale Contract, dated November 23,
2009 (as amended, 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.                 
Feasibility Period.  The Feasibility Period under the
Contract shall be deemed to have expired for all purposes under the Contract on
the Third Amendment Date.  Purchaser hereby agrees that it waives its right
to further object (pursuant to Sections 3.2 or 4.3 of the Contract
or otherwise) to any matter concerning the Title Documents, the Survey, the
Property Contracts, the Leases, the Miscellaneous Property Assets, the physical
condition of the Property, or otherwise with respect to the Property; provided,
however, that the foregoing waiver shall not waive any of Seller's obligations
or Purchaser's express rights under the Contract that are applicable to or arise
during the time period following the expiration of the Feasibility Period. 
Purchaser agrees that Seller has made all required deliveries under the Contract
and performed all of Seller's required obligations under the Contract through
the Third Amendment Date, and Seller agrees that Purchaser has made all required
deliveries required under the Contract and performed all of Purchaser's required
obligations under the Contract through the Third Amendment Date.  Purchaser
agrees that Purchaser's right to terminate the Contract under Section 3.2
of the Contract is permanently waived, the Deposit is non-refundable under all
circumstances except as provided in the Contract, and Purchaser's obligation to
obtain the Lender's approval of the Loan Assumption and
Release and to purchase the Property shall be conditional only as provided in
Section 8.1 of the Contract.

2.                 
Loan Approval Period.  The Loan Approval Period under the
Contract shall be deemed to have expired for all purposes under the Contract on
the Third Amendment Date.  Purchaser agrees that Purchaser's right to
terminate the Contract under Section 4.5.10 of the Contract is
permanently waived, the Deposit is non-refundable under all circumstances except
as provided in the Contract, and Purchaser's obligation to purchase the Property
shall be conditional only as provided in Section 8.1 of the Contract;
provided, however, that the foregoing waiver shall not waive any of Seller's
obligations or Purchaser's express rights under the Contract that are applicable
to or arise during the time period following the expiration of the Loan
Assumption Period.  

3.                 
Closing Date.  Section 5.1 of the Contract is hereby
amended and restated in its entirety as follows:

"The
Closing shall occur on January 29, 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."

4.                 
General Provisions.  The following provisions shall apply
with respect to this Third 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 Third
Amendment, the terms and conditions of this Third Amendment shall control.


(d)              
This Third 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 Third Amendment as of the
Third 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/Derek S. McCandless

                       
Name:  Derek S. McCandless

                       
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