FIFTH AMENDMENT TO PURCHASE AND SALE CONTRACT
Exhibit 10BBB
FIFTH AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FIFTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Fifth Amendment") is made and entered into this 10th day of February, 2010 (the "Fifth 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 XXXXXX 2009/FAIRWAY, LLC, a Texas limited liability company, having a principal address at 0000 Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000 ("Purchaser").
RECITALS:
WHEREAS, Seller and LandBanc Capital, Inc., an Arizona corporation ("Original 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 further amended by that certain Second Amendment to Purchase and Sale Contract, dated November 23, 2009, as further amended by that certain Third Amendment to Purchase and Sale Contact, dated December 18, 2009, and as assigned by Original Purchaser to Purchaser by that certain Assignment and Assumption of Purchase and Sale Contract, dated January 20, 2010, as further amended by that certain Fourth Amendment to Purchase and Sale Contact, dated January 28, 2010 (as amended and assigned, 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:
"The Closing shall occur on February 26, 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."
3. General Provisions. The following provisions shall apply with respect to this Fifth 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 Fifth Amendment as of the Fifth 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. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
[Purchaser's signature page to follow]
