FIRST AMENDMENT TO



Exhibit 10III

 

FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT

 

 

THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this
“Amendment”) is made and entered into the 10thday of
November, 2009 by and between AIMCO COVINGTON POINTE, L.P., a Delaware limited
partnership (“Seller”), and KENNEDY WILSON AUSTIN, INC., a Texas
corporation (“Purchaser”).

 

WI T
N E S S E T H:

 

WHEREAS, Seller and Purchaser are
parties to that certain Purchase and Sale Contract dated September 8, 2009 (the
“Contract”) pertaining to the purchase and sale of that certain
real property located in Dallas County, Texas more particularly described on
Exhibit A attached thereto and commonly known as the Covington Pointe
Apartments (the “Property”), as amended by that certain First
Amendment to Purchase and Sale Contract dated as of October 8, 2009, by that
certaing Second Amendment to Purchase and Sale Contract dated as of October 14,
2009, and by that certain Third Amendment to Purchase and Sale Contract dated as
of October 16, 2009; and

WHEREAS, the parties have agreed upon certain revised terms
for the purchase and sale of the Property and intend hereby to modify the
Contract to reflect the same, as more particularly set forth
hereinafter.

AM E
N D M E N T

NOW, THEREFORE, in consideration of
the mutual covenants set forth herein, Sellers and Purchaser hereby agree as
follows:

1.                 
Finance Contingency
Period.  Section 4.5.10 of the
Contract is hereby deleted in its entirety and replaced with the
following:

4.5.10 
Purchaser shall have until November 18, 2009 (the “Finance Contingency
Period”) to obtain Lender’s binding approval of the Loan Assumption and
Release.  If Purchaser does not obtain final approval of the Loan
Assumption and Release on terms reasonably acceptable to Purchaser within the
Finance Contingency Period, then this Contract shall be deemed automatically
terminated and of no further force and effect (subject to and except for the
Survival Provisions) as of 5:00 p.m. on the date of expiration of the Finance
Contingency Period and Escrow Agent shall pay to Seller $30,000.00 of the
Deposit and shall return the remainder of the Deposit to Purchaser.  

For
purposes of clarification and not limitation, $30,000.00 of the Deposit
previously paid by Purchaser shall be deemed immediately non-refundable to
Purchaser upon execution of this Amendment and shall be paid to Seller in the
event the Contract terminates for any reason other than as provided in Sections
4.6, 10.2, 11.1 or 12.1 thereof.  The remainder of the Deposit shall become non-refundable to Purchaser upon the lapse of the
Finance Contingency Period (assuming the Contract is not terminated prior to the
expiration thereof).

2.                 
Acceleration of
Financing.  Purchaser and Seller
acknowledge that the Loan Documents permit an upsizing of the Loan (the
“Loan Upsizing”), which Loan Upsizing Purchaser desires to be
accomplished prior to Closing.  As a result of the foregoing, Seller agrees
to use commercially reasonable efforts to cause the Loan Upsizing to close on or
before December 1, 2009 and, if so closed, such Loan Upsizing shall be part of
the indebtedness assumed by Purchased pursuant to Section 4.5 of the
Contract.  Purchaser shall pay all costs incurred by Seller or imposed by
Lender in connection with such Loan Upsizing to the extent the same are directly
attributable to the acceleration of the Loan Upsizing and shall, at Closing,
reimburse Seller for any additional escrows, reserves or impounds required by
Lender in connection with such Loan Upsizing.  Notwithstanding the
foregoing, the parties acknowledge that closing the Loan Upsizing prior to
Closing shall not be a condition to Closing.  The term “Loan Upsizing”, as
defined above, is hereby added to Schedule 1 of the Contract.

3.                 
Closing Date.  The first sentence of Section 5.1 of the Contract
is hereby deleted and replaced with the following:

The
Closing shall occur on or before 18 days after the closing of the Loan Upsizing
on a date mutually agreed upon by Seller and Purchaser (the “Closing
Date”) through an escrow with Escrow Agent, whereby the Seller,
Purchaser and their attorneys need not be physically present at the Closing and
may deliver documents by overnight air courier or other means.

4.                 
Counterparts.  This Amendment may be executed in multiple
counterparts, each of which shall be an original and all of which together shall
constitute one and the same Amendment.  It shall not be necessary that each
party execute each counterpart, or that any one counterpart be executed by more
than one party, so long as each party executes at least one
counterpart.

5.                 
Ratification.  Except as expressly set forth herein, all other
terms and conditions of the Contract, as previously amended, shall remain
unmodified, the same being ratified, confirmed and republished
hereby.

6.                 
Governing Law.  This Amendment shall be governed by and construed
in accordance with the laws of the State of Texas. 

[SIGNATURES ON
FOLLOWING PAGE]


NOW, THEREFORE,
the parties hereto have executed this Amendment as of the date first set forth
above.

Seller:


AIMCO COVINGTON POINTE, L.P.,

a
Delaware limited partnership

 

By:      
DAVIDSON GP, L.L.C.,

a
South Carolina limited liability company,

its
general partner

 

By:      
DAVIDSON INCOME REAL ESTATE, L.P., 

a
Delaware limited partnership, its member

 

By:      
DAVIDSON DIVERSIFIED PROPERTIES, INC.,

a
Tennessee corporation,

its
managing general partner

 

By: 
/s/Trent A. Johnson

Name: 
Trent A. Johnson

Title: 
Vice President

 

 

                                                           
Purchaser:

 

KENNEDY
WILSON AUSTIN, INC., 

a
Texas corporation

 

By: 
/s/Stephen A. Pyhrr

                                                           
Name:  Stephen A. Pyhrr

Title: 
Senior Managing Director