THIRD 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 0000 Xxxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000 ("Seller") and LANDBANC CAPITAL, INC., an Arizona corporation, having a principal address at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("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.
"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:
(b) Capitalized terms not defined herein shall have the same meaning as set forth in the Contract.
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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/Xxxxx X. XxXxxxxxxx
Name: Xxxxx X. XxXxxxxxxx
Title: Senior Vice President
[Purchaser's signature page to follow]
