Exhibit
10.46





SECOND AMENDMENT TO PURCHASE
AGREEMENT





THIS
SECOND AMENDMENT TO PURCHASE AGREEMENT (“Second Amendment”) is
made as of January 17, 2010, by and among Evergreen Realty Group, LLC, a
Delaware limited liability company (“ERG”), Evergreen
Realty Advisors, Inc., a California corporation (“Evergreen Advisors”),
Evergreen Realty Property Management LLC, a Delaware limited liability company
(“Evergreen
Management”), Evergreen Development, LLC, a California limited liability
company (“Evergreen
Development”), Evergreen Income & Growth REIT, Inc., a Virginia
corporation (“REIT
II”), Evergreen Institutional Partners Fund I, LLC (the “Institutional Fund”),
Real Property Systems – Indiana, LLC, an Indiana limited liability company
(“RPS-Indiana”), Real
Property Systems – Texas, LP, a Texas limited partnership (“RPS-Texas”), Real
Property Systems Inc., a California corporation (“RPS”), New West Realty, Inc.,
a California corporation (“New West”), Luke
McCarthy, an individual (“McCarthy”), Carl
Willgeroth, an individual (“Willgeroth”), Tracy
Thomson, an individual (“Thomson”) and Michael
Palmer, an individual (“Palmer”) and American
Spectrum Realty, Inc., a Maryland corporation (“American Spectrum”),
American Spectrum Realty Advisors, L.L.C., a Delaware limited liability company
(“American Spectrum
Advisors”), American Spectrum Asset Co., a Delaware limited liability
company (“American
Spectrum Asset”), American Spectrum Management Co., a Delaware limited
liability company (“American Spectrum
Management”) and American Spectrum Realty Operating Partnership, L.P., a
Maryland limited partnership (“American Spectrum
Partnership”).





RECITALS:





A.           Certain
of the Evergreen Parties and certain of the American Spectrum Parties entered
into that certain Purchase Agreement dated December 15, 2009 (the “Original Purchase
Agreement”).





B.           The
Original Purchase Agreement was amended pursuant to that certain Letter
Agreement dated December 18, 2009 (the “First
Amendment”).





C.           The
Parties to this Second Amendment desire to amend, modify and supplement the
Original Purchase Agreement, as amended by the First Amendment.





D.           In
addition to those terms defined in this Second Amendment, capitalized terms used
in this Second Amendment shall have the meanings set forth in the Original
Purchase Agreement, as amended by the First Amendment.





NOW,
THEREFORE, in consideration of the premises, representations, warranties,
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound hereby, agree as
follows:







1.           Agreement.
Notwithstanding anything to the contrary set forth in the Original Purchase
Agreement or the First Amendment, Agreement shall mean, collectively, the
Original Agreement, as amended by the First Amendment and as further amended by
this Second Amendment.





2.           Parties. The Parties
shall be the Evergreen Parties and the American Spectrum Parties. The Evergreen
Parties are, individually, any of the following: ERG, Evergreen Advisors,
Evergreen Management, Evergreen Development, REIT II, Institutional Fund,
RPS-Indiana, RPS-Texas, RPS, New West, McCarthy, Willgeroth, Thomson or Palmer
and, collectively, all of the following: ERG, Evergreen Advisors, Evergreen
Management, Evergreen Development, REIT II, RPS-Indiana, RPS-Texas, RPS, New
West, McCarthy, Willgeroth, Thomson and Palmer. The American Spectrum Parties
are, individually, any of the following: American Spectrum, American Spectrum
Advisors, American Spectrum Asset, American Spectrum Management or American
Spectrum Partnership and, collectively, all of the following: American Spectrum,
American Spectrum Advisors, American Spectrum Asset, American Spectrum
Management and American Spectrum Partnership.





3.           TIC Interests. The
Evergreen Parties, and each of them, jointly and severally, hereby represent
that they hold as a manager, managing member, general partner or the like, a
number of interests in limited liability companies, partnerships, joint ventures
or the like (“TIC Entities”) which TIC
Entities own an undivided interest in a Property, but that the Evergreen Parties
may not have any direct or indirect equity ownership in any such Property by
reason of their interests in the TIC Entities. Accordingly, American Spectrum
Asset Co. and the appropriate Evergreen Parties shall execute and deliver, each
to the other, at the Closing an Agreement to Appoint New Manager pursuant to
which the Evergreen Parties shall agree to cause American Spectrum Asset Co. to
succeed to the management rights of the applicable Evergreen Party in the TIC
Entities. The American Spectrum Parties and the Evergreen Parties acknowledge
that certain Evergreen Parties are members of the limited liability company
(“Central Florida
LLC”) that owns the Property known as Tampa Self Storage and Ocala Self
Storage, Tampa, Florida, and Ocala, Florida, and while the management rights in
the Central Florida LLC of certain Evergreen Parties will be assigned and
transferred to American Spectrum Management Co., the ownership rights (i.e.,equity) will be
retained by the Evergreen Parties and not transferred to the American Spectrum
Parties. Similarly, the American Spectrum Parties and the Evergreen Parties
acknowledge that certain Evergreen Parties own an undivided interest in the
Property known as Arbors Senior Living, San Diego, California (“Arbors
Senior Living
Property”), and that, while management rights under the Asset Management
Agreement held by the Evergreen Entities shall be transferred to American
Spectrum Management Co., the equity interest of the Evergreen Parties (e.g., an undivided interest
inthe Arbors Senior Living Property)
will not be transferred to the American Spectrum Parties, Moreover, the American
Spectrum Parties agree to discuss and consider a proposal pursuant to which the
Evergreen Parties and/or others will contribute to REIT II the Evergreen
Parties’ membership interest in the Central Florida LLC, their interest in the
Arbors Senior Living Property and/or other assets in consideration of the
issuance of Units by REIT II. Any such discussions shall be undertaken in good
faith and in the best interest of all Persons, including the existing holders of
units in REIT II.


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4.           REIT II and Institutional
Fund. The Evergreen Parties shall convey to American Spectrum Asset Co.
all of their right, title and interest in and to any interest the Evergreen
Parties hold in REIT II and the Institutional Fund free and clear of any and all
liens, encumbrances and adverse claims. The Evergreen Parties will take such
further actions as are reasonably requested by the American Spectrum Parties to
vest in American Spectrum Asset Co. or its designees any and all management
and/or control rights in REIT II and the Institutional Fund (e.g., designation and/or election of
manager(s), managing member(s), directors, etc.).





5.           Offices of Evergreen.
The definition of “Offices of Evergreen” in the Agreement shall be modified to
read in full as follows:





“Offices of
Evergreen” means the offices of any
Evergreen Party maintained at (a) 12402 Industrial Boulevard, Suite B-2;
Victorville, California, (b) 225 South Lake Avenue, Pasadena, California, and/or
(c) any other offices maintained by an Evergreen Party for the operation of the
business of an Evergreen Party (other than that certain space occupied by New
West in Victorville, California).”





6.           Closing Date/Accounting
Period. Notwithstanding
anything to the contrary set forth in the Original Agreement or First Amendment,
the Closing Date shall be 12:01 a.m. January 17, 2010 and all adjustments
respecting such liabilities and revenues shall be adjusted as of such time. A
full accounting of any such liabilities and/or revenues shall be approved by the
American Spectrum Parties and the Evergreen Parties within 90 days after the
Closing Date. Notwithstanding the foregoing, the Accounting Period to determine
the Adjusted Purchase Price shall continue to be the period commencing on
January 1, 2010 and ending on December 31, 2010 inasmuch as the accounting
required to be undertaken with respect to the Accounting Period will be easier
to accomplish by the Parties for such period than for a period which does not
coincide with the beginning and end of a calendar year.





7.           Excluded Liabilities: REIT
I. Notwithstanding anything to the contrary set forth in the Original
Agreement and the First Amendment, to the extent American Spectrum Management
Co. is required to assume any obligations or liabilities with respect to REIT I
from and after the Closing Date pursuant to the terms of the Agreement, such
assumption shall commence on October 27, 2009 rather than the Closing Date,
October 27, 2009, the date that certain representatives of American Spectrum
were elected to the Board of Directors of REIT I.





8.           Intentionally
Omitted.





9.           Returns. The American
Spectrum Parties acknowledge that certain Evergreen Parties have not filed their
2008 federal Returns and that, when prepared and filed, such Returns may have an
effect upon the Returns filed or to be filed by such Evergreen Parties in
various states. The Evergreen Parties shall prepare and file, or cause to be
prepared and filed, all Returns required to be prepared and filed by the
Evergreen Parties applicable to periods prior to the Closing Date as soon as
reasonably practical and, if necessary, amend any Returns required to be
amended, modified or supplemented.





10.         Intentionally
Omitted.


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11.         Future Employment ofEmployees. Notwithstanding anything to the
contrary set forth in the Original Agreement or the First Amendment, (a) the
date until which American Spectrum Management Co. shall agree to continue the
employment of any Employee shall be changed from March 15, 2010 until the date
which is sixty two (62) days after the Closing Date, (b) no American Spectrum
Party shall have any liability and/or responsibility for any amounts due any
Employee who does not accept continued employment with American Spectrum
Management Co. and (c) no American Spectrum Party shall have any liability
and/or responsibility due any Employee who accepts voluntary employment with
American Spectrum Management Co. and thereafter voluntarily terminates his
employment with American Spectrum Management Co. for any amounts accrued prior
to the Closing Date. Notwithstanding anything to the contrary contained in the
Purchase Agreement, as amended, American Spectrum’s obligations with respect to
the Employees shall commence at 12:01 a.m. January 17, 2010 and (except as
otherwise provided in Section 1 of the First Amendment) no American Spectrum
Party shall have any obligations with respect to the Employees prior to such
time.





12.         Typographical
Corrections. The reference to “Evergreen Party” in the fourth line of
Section 7.2(c) of the Original Agreement shall be changed to “American Spectrum
Party” and the phrase “Subject to Section 2.3(b)” in the first line of Section
7.3(b) of the Original Agreement is hereby deleted.





13.         Deliveries. The
Parties acknowledge that certain of the documents to be delivered at the Closing
which are attached to the Original Agreement will be modified to accommodate the
terms and provisions of the First Amendment and this Second Amendment and that,
in addition to the delivery of documents required by the Original Agreement and
First Amendment, the Evergreen Parties shall also be delivering to American
Spectrum at the Closing certain additional documents necessary to implement the
intents and provisions of the Purchase Agreement, as amended.





14.         Additional Representations
of the Evergreen Parties. Except as disclosed in an Assignment of Rights,
Sub-Property and Asset Management Agreement, Loan Documents or in other document
delivered by the Evergreen Parties to American Spectrum at the Closing, (a) no
Evergreen Party owns any interest, directly or indirectly, in any Property, (b)
no Evergreen Party is a party to any agreement or contract with the owner(s) of
any Property pursuant to which an Evergreen Party receives Fees, including any
property management fees, refinancing fees, disposition fees, development fees,
asset management fees, brokerage fees, etc.or any other contract or
document respecting the Properties (e.g.,sub-property
management agreements, brokerage services agreements, management agreements,
property management agreements, etc.),(c) no Evergreen Party
has any recourse liability under any of the Loan Documents (other than for
customary non-recourse carve-outs) and no American Spectrum Party shall assume
any recourse liability under the Loan Documents by reason of the transactions
governed by the Original Agreement, as amended by the First Amendment and as
further amended by this Second Amendment, (d) the TIC Agreements (including
those governing partnerships, limited liability company agreements, etc.)which have been
delivered to American Spectrum by ERG are true, correct and accurate copies of
the originals thereof and, if any copy so delivered is not of a fully executed
TIC Agreement, the Evergreen Parties represent and warrant that such TIC
Agreement has been fully executed in the form so delivered, (e) no TIC Agreement
has been amended, modified or supplemented except for the sole purpose of
reflecting the ownership interest in a Property set forth on the ERG First Class
Web Access, (f) the copies of the documents governing the TIC Entities (i.e.,limited liability
company agreements, partnership agreements, etc.)which have been
delivered to American Spectrum by ERG are true, correct and accurate copies of
the originals thereof and, if any copy delivered is not of a fully executed
document, the Evergreen Parties represent and warrant that such document has
been fully executed in the form so delivered, and (g) to the extent that a TIC
Agreement or the documents referenced in subparagraph (f) have not been
delivered by ERG to American Spectrum respecting any Property, the TIC Agreement
or such documents governing such Property are in substantially the same form as
the TIC Agreements or other documents (as applicable) governing such
Property.


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15.         Verbal Property Management
Agreements. The Evergreen Parties have represented that there are no
written Property Management Agreements and/or Asset Management Agreements for
the below described Properties but that such Properties are being managed by
Evergreen Management pursuant to verbal agreements with the owner(s) of such
Properties. The Evergreen Parties hereby represent and warrant that each of such
verbal agreements is on the same terms and conditions (including thepaymentof Fees) as are set forth in
the standard-form Property Management Agreement of Evergreen Management and/or
Asset Management Agreement.





Attic
Space Self-Storage, Laredo Road, San Antonio, Texas (Property Management
Agreement).





16.         Address forNotices
to the Evergreen Parties. The address for notices to the Evergreen
Parties set forth in Section 9.1 of the Original Purchase Agreement is hereby
changed to the following:





1443 East
Washington Boulevard, Suite 820


Pasadena,
California 91104





17.         Exhibits E and F.
Exhibits “E” and “F” to the Original Agreement are hereby replaced with the
Schedule of Contracts attached hereto.





18.         Clarification of Application
of Deferred Payments.





The
definition of the term “Deferred Payments” in Sections 1.1, Section 5.14 of the
Original Purchase Agreement governing application of Deferred Payments, and
Section 4 of the First Amendment governing application of deferred Payments are
hereby deleted and replaced with the following:





“Deferred Payments.
All Deferred Payments shall belong and be paid to American Spectrum Management
Co. and shall be applied by American Spectrum Management Co. in the following
order of priority: (i) first, to reimburse American Spectrum Management Co. for
all reasonable costs incurred to collect any Deferred Payments, (ii) secondly,
to Palmer 25% of the balance to each of McCarthy and Palmer, provided that, from
the amount otherwise due McCarthy, American Spectrum Management Co. shall pay to
REIT I or REIT II (as reasonably determined by American Spectrum Management Co.)
the amount necessary to pay any accrued interest and principal due by any
Evergreen Party to REIT I or REIT II for funds loaned by REIT I or REIT II to
such Evergreen Party until all such indebtedness (including accrued interest)
due REIT I and REIT II by such Evergreen Parties has been discharged in full and
(iii) the balance shall be retained by American Spectrum Management Co.
Application and payment of all Deferred Payments received by American Spectrum
Management Co. shall be made promptly after receipt thereof. Deferred Payments
shall include (i) any Disposition Fees and/or Refinancing Fees payable under any
contract or agreement set forth on the Schedule of Contracts (including
Brokerage Services Agreements) attached hereto plus (ii) the proceeds received
from the repayment of any loans and/or other advances made by McCarthy or
affiliates of McCarthy (other than the Evergreen Parties) to holders of TIC
Interests. American Spectrum Management Co. reserves the right to defer,
discount, subordinate, forgive or otherwise modify the amount and/or terms of
any Deferred Payment without the approval or consent of any Evergreen Party;”
provided, however, American Spectrum Management Co. agrees that any
determination by it to defer, discount, subordinate, forgive or otherwise modify
any Deferred Payment shall be exercised by American Spectrum Management Co.
acting in its reasonable discretion.


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19.         Voluntary Termination of
Management Agreements. The Evergreen Parties acknowledge that,
notwithstanding Section 3 of the First Amendment, American Spectrum Management
Co. shall have no obligation to cure any default or to take any action pursuant
to which any Person attempts to terminate a Management Agreement, and any offer
to reassign a Management Agreement in accordance with Section 3 of the First
Amendment shall not require American Spectrum to pay any consideration to any
Evergreen Party and such offer to reassign shall require the Evergreen Parties
to assume such Management Agreement and any third party claims made or to be
made thereunder.





20.         Intentionally Omitted. Third Party
Subcontracts. The
Evergreen Parties have advised the American Spectrum Parties that the property
management of certain Properties is being performed pursuant to
contracts/sub-contracts with third Persons disclosed by ERG to American
Spectrum. Evergreen Management agrees that, in the event any such
sub-contract is terminated for any reason whatsoever and that there is not a
property management agreement then in effect between Evergreen Management and
American Spectrum Management Co, Evergreen Management shall enter into a Sub-Property and Asset Management Agreement with
American Spectrum Management Co. with respect to such
Property.


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21.         Adjusted Purchase Price. Section
2.6(c)(i) of the Original Agreement is hereby deleted and the following
substituted therefor:





“(i)           The
Adjusted Purchase Price shall equal the following: (A) three hundred percent
(300%) of the “property management fees” earned and actually paid to American
Spectrum Management Co. during the Accounting Period under the Original
Agreements (as defined in the Sub-Property and Asset Management Agreements being
executed and delivered by American Spectrum Management Co. and Evergreen
Management at the Closing) which are in full force and effect on the last day of
the Accounting Period whether such property management fees are paid directly to
American Spectrum Management Co. (i.e.,
pursuant to Original Agreements which have been conditionally assigned to
American Spectrum Management Co. pursuant to an Assignment of Rights) or paid
indirectly to American Spectrum Management Co. by Evergreen Management (i.e.,pursuant to the terms of
an applicable Sub-Property and Asset Management Agreement) plus (B) three
hundred percent (300%) of any “asset management fees” earned and actually paid
to American Spectrum Advisors during the Accounting Period under the Advisory
Agreement between American Spectrum Advisors and REIT I so long as such Advisory
Agreement is in full force and effect on the last day of the Accounting Period,
plus (C) three hundred percent (300%) of the property management fees earned but
not paid to American Spectrum Management Co. during the Accounting Period
pursuant to Original Agreements or Sub-Property and Asset Management Agreements
which are in full force and effect on the last day of the Accounting Period but
only to the extent such property management fees may be accrued and included as
an asset on the balance sheet of American Spectrum Management Co. in accordance
with GAAP, as determined by the independent auditors of American Spectrum
Management Co. plus (D) three hundred percent (300%) of the asset management
fees earned but not paid under the Advisory Agreement by REIT I to American
Spectrum Advisors during the Accounting Period so long as such Advisory
Agreement is in full force and effect on the last day of the Accounting Period
but only to the extent that such earned but not paid asset management fees may
be accrued and included as an asset on the balance sheet of American Spectrum
Advisors in accordance with GAAP, as determined by the independent auditors of
American Spectrum Advisors, less (E) the Offset Amount, if any. In the event
that there exists a subcontract respecting any Original Agreement on the Closing
Date, then any and all Fees paid under such Original Agreement shall not be
included in the determination of the Adjusted Purchase
Price.


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IN
WITNESS WHEREOF, the Parties have caused this Second Amendment to be executed as
of the date first above written.
 
 EVERGREEN
      PARTIES:Evergreen
      Realty Group, LLC, a Delaware limitedliability
      companyBy:
                /s/ Luke V. McCarthyName:  Luke
      V. McCarthyTitle:    PresidentEvergreen
      Realty Advisors, Inc., a CaliforniacorporationBy:
                /s/ Luke V. McCarthyName:  Luke
      V. McCarthyTitle:    PresidentEvergreen
      Realty Property Management LLC, alimited
      liability companyBy:
                /s/ Luke V. McCarthyName:  Luke
      V. McCarthyTitle:    PresidentEvergreen
      Development, LLC, a California limitedliability
      companyBy:
                /s/ Luke V. McCarthyName:  Luke
      V. McCarthyTitle:    PresidentEvergreen
      Income & Growth REIT, Inc., a VirginiacorporationBy:
                /s/ Luke V. McCarthyName:  Luke
      V. McCarthyTitle:    President
  -8-
 
 Evergreen
      Institutional Partners Fund I, LLCBy:
                /s/ Luke V. McCarthyName:Title:
 
 Real
      Property Systems-Indiana, LLC, an Indianalimited
      liability companyBy:Name:  Michael
      W. PalmerTitle:    PresidentReal
      Property Systems-Texas, LP, a Texas limitedpartnershipBy:Name:  Michael
      W. PalmerTitle:    PresidentReal
      Property Systems Inc., California a corporationBy:Name:  Michael
      W. PalmerTitle:    PresidentNew
      West Realty, Inc., a California corporationBy:Name:  Michael
      W. PalmerTitle:    President/s/
      Luke V. McCarthyLuke
      V. McCarthyCarl
      Willgeroth
  -9-
 
 Evergreen
      Institutional Partners Fund I, LLCBy:Name:Title:
 
 Real Property Systems-Indiana, LLC, an Indiana limited liabilitycompanyBy:
                    /s/ Michael W. PalmerName:  Michael
      W. PalmerTitle:    PresidentReal
      Property Systems-Texas, LP, a Texas limited partnershipBy:
                    /s/ Michael W. PalmerName:  Michael
      W. PalmerTitle:    PresidentReal
      Property Systems, Inc., California a corporationBy:
                    /s/ Michael W. PalmerName:  Michael
      W. PalmerTitle:    PresidentNew
      West Realty, Inc., a California corporationBy:
                    /s/ Michael W. PalmerName:  Michael
      W. PalmerTitle:    President
  -10-
 
 Luke
      V. McCarthyCarl
      WillgerothTracy
      Thomson/s/ Michael W. PalmerMichael
      W. PalmerAMERICAN
      SPECTRUM PARTIES:American
      Spectrum Realty, Inc., a Maryland corporationBy:
                /s/ William J. CardenName:  William
      J. CardenTitle:    PresidentAmerican
      Spectrum Realty Advisors, L.C., a Delaware limitedliability
      companyBy:
                /s/ William J. CardenName:  William
      J. CardenTitle:    President
  -11-
 
 Luke
      V. McCarthy/s/ Carl WillgerothCarl
      WillgerothTracy
      Thomson/s/ Michael W. PalmerMichael
      W. PalmerAMERICAN
      SPECTRUM PARTIES:American
      Spectrum Realty, Inc., a Maryland corporationBy:Name:  William
      J. CardenTitle:    PresidentAmerican
      Spectrum Realty Advisors, L.C., a Delaware limitedliability
      companyBy:Name:  William
      J. CardenTitle:    President
  -12-