FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT



Exhibit 10.28

 

SECOND AMENDMENT TO 
PURCHASE AND SALE
CONTRACT

 

           
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Second
Amendment") is made and entered into this 2nd day of
December, 2010 (the "Second Amendment Date") by and between
CARRIAGE APX, A MICHIGAN LIMITED PARTNERSHIP, a Michigan limited
partnership, having an address at 4582 South Ulster Street Parkway, Suite 1100,
Denver, Colorado 80237 ("Seller") and CARRIAGE HILL MERIDIAN,
LLC, a Michigan limited liability company, having a principal address at
2502 Lake Lansing Road, Suite C, Lansing, Michigan 48912-3661
("Purchaser").  

 

RECITALS:

 

           
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale
Contract, dated October 18, 2010, as amended by that certain First Amendment to
Purchase and Sale Contract dated November 11, 2010, and as assigned pursuant to
that certain Assignment of Purchase and Sale Contract, dated December 1, 2010
(as amended and assigned, the "Contract"), for certain real
property situated in the County of Ingham, State of Michigan, known as Carriage
Hill Apartments and more specifically described in the Contract (the
"Property"); and

 

           
WHEREAS, Seller and Purchaser desire to amend and ratify 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.                 
Section 4.7.3.  Section 4.7.3 of the Contract is
hereby deleted in its entirety and replaced with the following:

"4.7.3  
Provided that Purchaser is not in default under this Section 4.7 or this
Contract, Purchaser shall be permitted one 21-day extension of the Financing
Approval Period specified in Section 4.7.1 by: (i) delivering written
notice to Seller on or prior to expiration of the Financing Approval Period, and
(ii) simultaneously with delivery of such notice to Seller, delivering to the
Escrow Agent the amount of $50,000.00, which shall be held, credited and
disbursed in the same manner as provided hereunder with respect to the
Deposit."

2.                 
Financing Approval Period.  Seller and Purchaser agree and
acknowledge that if Purchaser exercises its right to extend the Financing
Approval Period in accordance with Section 4.7.3 of the Contract, the
Financing Approval Period, as hereby extended, shall expire on Thursday December
23, 2010 at 5:00 p.m.

3.                 
Section 5.1.  The first sentence of Section 5.1 is
hereby deleted in its entirety and replaced with the following:

"5.1     
Closing Date.  The Closing shall occur on (a) December 30,
2010, or (b) such earlier date as mutually agreed upon by Seller and Purchaser
in writing (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."

4.                 
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 Second
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:

 

 

CARRIAGE
APX, A MICHIGAN LIMITED PARTNERSHIP,

a
Michigan limited partnership

 

By:      
CARRIAGE APX, INC.,

           
a Michigan corporation,

           
its general partner

 

 

           
By:  /s/John Spiegleman

Name: 
John Spiegleman

Title: 
Senior Vice President

 

 

 

[SIGNATURES CONTINUED ON NEXT PAGE]

 

 




Purchaser:

 

CARRIAGE
HILL MERIDIAN, LLC,

a
Michigan limited liability company

By: 
DTN 2007, LLC.

          
Its:  Manager

 

 

By: 
/s/Iqbal S. Uppal

Name: 
Iqbal S. Uppal

Title: 
Manager