Exhibit 10.40
FIRST AMENDMENT TO
PURCHASE AND SALE CONTRACT
THIS FIRSTAMENDMENT TOPURCHASEANDSALECONTRACT("First Amendment") is entered into as of this 21 day of July, 2008, by and betweenCCIP12 CANYONCREST, L.L.C., a Delaware limited liability company("Seller"),andBELLAIRE HOLDINGSLLC., a Colorado limited liability company, and FWMADISON MARKETING GROUP,LLC, a Colorado limited liability company (collectively"Purchaser).
WHEREAS,Purchaser and Seller entered into a Purchase and Sale Contract dated as of June 27, 2008 (the "Contract") for the purchase and sale of certain property located in Arapahoe County, Colorado, known as Canyon Crest Apartments and more particularly described in the Contract (the "Property"). Capitalized terms used and not defined in this First Amendment are used with the meanings set forth in the Contract; and
WHEREAS,Purchaser and Seller desire to amend the Contract in accordance with the terms and conditions described herein.
NowTHEREFORE,in consideration of the mutual covenants hereinafter set forth, the parties agree as follows:
1.
Purchase Price.The Purchase Price found in Section 2.2 shall be $4,100,000.
2.
Contingency.Seller and Purchaser agree that the Feasibility Period and Purchaser's right to terminate the Contract pursuant to Section 3.2 have each expired as of the date hereof Purchaser accepts title, survey, the physical condition, all leases, and all inspection items. Purchaser shall deliver the Additional Deposit to Escrow Agent on or before July 22, 2008.
3.
Closing.Section 5.1 is amended to state that Closing shall occur on August 1, 2008. If the Closing does not occur on August 1, 2008 for any reason other than Purchaser's default under the Contract, Purchaser shall be entitled to an immediate return of its Deposit.
4.
In all other respects, the Contract is hereby reaffirmed and remains in full force and effect.
IN WITNESS WHEREOF,the parties have executed this First Amendment as of the day and year first written above.
SELLER:
CCIP/2 CANYON CREST, L.L.C.,
a Delaware limited liability company
By: CONSOLIDATED capitalized
INSTITUTIONAL PROPERTIES/2, LP
SERIES B,
a Delaware limited partnership,
its member
By:
CONCAP EQUITIES, INC.,
a Delaware corporation,
its general partner
By:
/s/Brian J. Bornhorst
Name: Brian J. Bornhorst
Title: Vice President
PURCHASER:
BELLAIRE HOLDINGS LLC, a Colorado
limited liability company
By: /s/Scott Shwayder
Name: Scott Shwayder
Title: Manager
FW MADISON MARKETING GROUP, LLC,
a Colorado limited liability company
By: /s/Scott Shwayder
Name: Scott Shwayder
Title: Manager