SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
Exhibit 10YY
SECOND AMENDMENT TO
PURCHASE AND SALE
CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Second Amendment") is made and entered into this 23rd day of November, 2009 (the "Second 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 (as amended, the "Contract"), for certain real property situated in the County of Collin, State of Texas, commonly known as The Fairways 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:
"3.1 Feasibility Period. Subject to the terms of Sections 3.3 and 3.4 and the rights of Tenants under the Leases, from the Effective Date to and including December 18, 2009 (the "Feasibility Period"), Purchaser, and its agents, contractors, engineers, surveyors, attorneys, and employees (collectively, "Consultants") shall, at no cost or expense to Seller, have the right from time to time to enter onto the Property to conduct and make any and all customary studies, tests, examinations, inquiries, inspections and investigations of or concerning the Property, review the Materials and otherwise confirm any and all matters which Purchaser may reasonably desire to confirm with respect to the Property and Purchaser's intended use thereof (collectively, the "Inspections")."
"If Purchaser provides such notice, this Contract shall terminate and be of no further force and effect subject to and except for the Survival Provisions."
"The Closing shall occur on the date that is 30 days after Purchaser's receipt of Lender's approval of the Loan Assumption and Release 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; provided, however, that in no event shall the Closing Date be a date later than January 18, 2010."
6. General Provisions. The following provisions shall apply with respect to this Second 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 Second Amendment as of the Second 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/Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
[Purchaser's signature page to follow]
