Exhibit 10.76
REINSTATEMENT OF AND AMENDMENT
TO PURCHASE AND SALE
CONTRACT
Reinstatement of and Amendment to Purchase and Sale Contract (the
“Amendment”) is made as of June 1, 2009, between CCIP SOCIETY PARK EAST,
L.L.C. (“Seller”) and CD GROUP, LLC (“Purchaser”).
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into a Purchase and Sale Contract
dated as of April 21, 2009 (the “Agreement”) with respect to the sale of
certain property known as The Dunes Apartment Homes located in Brevard County,
Florida, as described in the Agreement;
WHEREAS, pursuant to Section 3.2 of the Agreement, Purchaser had a right
to terminate the Agreement by written notice given to Seller on or prior to May
5, 2009;
WHEREAS, Purchaser exercised such termination right pursuant to that
certain letter dated May 5, 2009 from Purchaser to Seller (the “Termination
Notice”); and
WHEREAS, Seller and Purchaser desire to (i) rescind the Termination
Notice, (ii) reinstate the Agreement in its entirety and (iii) amend the
Agreement on the terms set forth herein.
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 Agreement, except
as expressly otherwise defined herein.
2.
Reinstatement.
Purchaser hereby rescinds the Termination Notice. Seller and Purchaser
hereby agree that (i) the Termination Notice is null and void and (ii) the
Agreement is hereby reinstated in its entirety, as amended herein, and is hereby
ratified and affirmed in all respects, as if the Termination Notice had never
been given by Purchaser.
3.
Purchase Price. The first 3 lines of Section 2.2 of the
Agreement shall be deleted and replaced as follows: “The total
purchase price ("Purchase Price") for the Property shall be an
amount equal to Six Million Three Hundred Thousand Dollars
($6,300,000.00), payable by Purchaser as follows:”
4.
Additional Deposit. Notwithstanding anything to the contrary
in the Agreement, within 1 Business Day following the date of this Amendment,
Purchaser shall deliver to Escrow Agent the Additional Deposit by wire transfer
of Good Funds.
5.
Right to Terminate. Purchaser's right to
terminate the Agreement pursuant to Section 3.2 thereof is hereby
permanently waived, and Purchaser shall have no further right to terminate the Agreement pursuant to the terms of said Section
3.2. Purchaser acknowledges and agrees that (i) it has completed its
due diligence investigations of the Property and accepts the Property
(including, without limitation, the physical and financial condition of the
Property) as of the date of this Amendment in its current “as is”, “where is”
condition, “with all faults”, (ii) the Initial Deposit currently being held by
Escrow Agent is non-refundable (except as otherwise provided for in the
Agreement) and (iii) Purchaser’s obligation to purchase the Property shall be
conditional only as provided in Section 8.1 of the Agreement.
6.
Closing Date. The first sentence of Section 5.1.1 of the Agreement
shall be deleted and replaced as follows: “The Closing shall occur on July
16, 2009 at the time set forth in Section 2.2.3 (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.”
7.
Purchaser’s Adjournment Rights. The first sentence of
Section 5.1.3 shall be deleted and replaced as follows: “If Purchaser is
not in default under the terms of this Contract, Purchaser shall have the right
to adjourn the Closing (“First Adjournment Right”) to a date which
is not later than July 31, 2009 (the “First Adjourned Closing
Date”), by delivering written notice (the “First Adjournment
Notice”) to Seller not later than July 9, 2009, provided that Purchaser
shall, concurrently with the delivery of the First Adjournment Notice, deliver
to Escrow Agent an additional deposit of $25,000.00 (the “First
Adjournment Deposit”). Further, if Purchaser (a) exercises its
First Adjournment Right and (b) is not in default under the terms of this
Contract, then Purchaser shall have an additional right to adjourn the Closing
to a date which is not later than August 17, 2009, by delivering written notice
(a “Second Adjournment Notice”) to Seller not later than July 24,
2009, provided that Purchaser shall, concurrently with the delivery of the
Second Adjournment Notice, deliver to Escrow Agent an additional deposit of
$50,000.00 (the “Second Adjournment Deposit”). The First
Adjournment Deposit and the Second Adjournment Deposit, each to the extent
delivered to Escrow Agent, shall be deemed part of the Deposit for all purposes
of the Agreement.
8.
Miscellaneous.
This Amendment (a) supersedes all prior oral or written communications
and agreements 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 Agreement are hereby ratified and confirmed and shall
continue in full force and effect.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year hereinabove written.
Seller:
CCIP Society Park East, L.L.C., a
Delaware limited liability company
By:
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES, LP SERIES C, a Delaware limited
partnership, its member
By:
CONCAP EQUITIES, INC., a Delaware corporation, its general partner
By:
/s/Xxxxx X. Xxxxxxxxx
Name:
Xxxxx X. Xxxxxxxxx
Title:
Vice President
Purchaser:
CD
GROUP, LLC,
a
Florida limited liability company
By:
/s/Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
Managing Agent
