Fourth Amendment



Exhibit
10.21

 

FOURTH AMENDMENT

TO

PURCHASE AND SALE CONTRACT

 

           
This Fourth Amendment to Purchase and Sale Contract (“Amendment”) is made and
entered into as of September 22, 2008, by and between ORP THREE L.L.C., a
Maryland limited liability company (“Seller”), and NIGHTHAWK PROPERTIES,
LLC, a Minnesota limited liability company, and OSPREY PROPERTIES LIMITED
PARTNERSHIP, LLLP, a Minnesota limited liability limited partnership
(collectively, “Purchaser”).

 

BACKGROUND

 

           
Seller and Purchaser entered into a Purchase and Sale Contract dated August 12,
2008, as amended by a First Amendment to Purchase and Sale Contract dated August
15, 2008, a Second Amendment to Contract dated August 20, 2008 and a Third
Amendment to Purchase and Sale Contract dated August 22, 2008 (collectively, the
“Purchase Contract”).  Under the Purchase Contract, Seller agrees to sell
to Purchaser certain real estate legally described in the Purchase Contract,
located in the City of Burnsville, Dakota County, Minnesota, known as the Raven
Hill Apartments (the “Property”).  Capitalized terms not defined herein,
shall have the same meaning given such terms in the Purchase
Contract.

 

           
Purchaser and Seller wish to modify and amend the Purchase Contract to provide a
credit to Purchaser in exchange for a release of Seller by Purchaser of
liability for existing roof conditions at the Property.  

 

AGREEMENT

 

           
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties mutually agree as
follows:

 

1.                 
Payment for existing roof
condition.  At Closing,
Seller shall pay Purchaser the amount of $150,000 due to the existing roof
condition at the Property.  Purchaser agrees that (a) such payment of
$150,000 shall constitute full payment, satisfaction, discharge and release of
and from all matters relating to the roof and the condition thereof, (b) Seller
shall have no obligation to make any repairs to the roof and (c) the Property
(including the roof) is being purchased “as-is,” “where-is” and “with all
faults,” to the extent provided in Section 6.2 of the Purchase
Contract.

2.                 
Payment for UST
RemovalThe credit of $150,000
for the removal of the underground storage tanks at the Property (as described
in the Third Amendment to Purchase and Sale Contract dated August 22, 2008)
shall be a payment by Seller to Purchaser instead of a credit against the
Purchase Price (in addition to the $150,000 payment to Purchaser for the
existing roof condition as described in paragraph 1 above), for a total payment
made to Purchaser at closing of $300,000, subject to other payments, credits and
debits otherwise provided by the Purchase and Sale Contract dated August 12,
2008.

3.                 
Closing Date.  Purchaser hereby extends the Closing Date
to September 30, 2008 pursuant to its extension right as detailed in Section
5.1.2 of the Purchase and Sale Contract dated August 12,
2008.  Purchaser acknowledges that it has no further rights of extension
under the Purchase Contract.

4.                 
Ratification.  Except as modified by this Amendment, the
Purchase Contract is hereby ratified and confirmed in all respects.

5.                 
Counterparts.  This Amendment may be executed in any
number of counterparts, each of which shall constitute an original but all of
which together with constitute one instrument. This Amendment shall not be
effective unless and until the same has been executed and delivered by all
parties hereto whether in one or more counterparts.  This Amendment may be
executed by facsimile or pdf signatures which shall be binding on the parties
hereto, with original signatures to be delivered as soon as reasonably practical
thereafter.

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INTENTIONALLY BLANK]




 

IN WITNESS WHEREOF, to evidence their agreement to the foregoing, the
parties have duly executed this Amendment effective as of the date first
indicated above.

 

                                               
SELLER:

 

ORP THREE L.L.C.,

a Maryland limited liability company 

 

By:       ORP
CORPORATION III,

           
a Maryland corporation

Its:       Managing
Member

 

By:  /s/Brian J. Bornhorst

Name:  Brian J. Bornhorst

Its: Vice President

 

PURCHASER:

 

NIGHTHAWK PROPERTIES, LLC, 

a Minnesota limited liability company

 

By: 
/s/James R. Riley

Name: 
James R. Riley

Its: 
President

 

 

OSPREY PROPERTIES LIMITED 

PARTNERSHIP, LLLP,

a Minnesota limited liability limited
partnership

 

By:       Riley
Family Corporation,

           
its General Partner

 

By: 
/s/James R. Riley

Name: 
James R. Riley

Its: 
President