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Exhibit 10.146

 

THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT

 

 

THIS
THIRD AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE AND JOINT ESCROW INSTRUCTIONS
(this “Third Amendment”) is made and entered into as
of the 21st day of October, 2008, by and among by the selling parties identified
on Seller Information Schedule attached as Schedule 1 to the Agreement
(as that term is defined below) each having an address at 4582 South Ulster
Street Parkway, Suite 1100, Denver, Colorado 80237 (individually a
“Seller” and collectively “Sellers”), and JRK
BIRCHMONT ADVISORS, LLC, a Delaware limited liability company and JRK PROPERTY
HOLDINGS, INC., a California corporation, each having a principal address at
11766 Wilshire Boulevard, Suite 1450, Los Angeles, California 90025
(collectively as “Purchaser”), or its permitted assignee or
assignees as provided in Section 14.4 of the Agreement.

RECITALS

 

A.       
Sellers and Purchaser are parties to that certain Agreement for Purchase and
Sale and Joint Escrow Instructions, dated September 29, 2008 (the
“Agreement”) pertaining to the purchase and sale of those certain
real properties located in Georgia more particularly described on Exhibits
A-1 through A-2 attached to the Agreement (the
“Properties”).  

B.        
Sellers and Purchaser intend to modify the Agreement as more particularly
described below.

AGREEMENT

NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Sellers and Purchaser hereby agree as follows:

1.                 
Capitalized Terms.  All capitalized terms and phrases
used herein but not otherwise defined shall have the same meanings given to them
in the Agreement.  

2.                 
Seller Financing.  A new Section 4.7 to
the Agreement is hereby added as follows:

4.7 
Seller Financing.  At Closing, the Belmont
Place Seller (or such other AIMCO-affiliated entity as such Seller may select)
will offer partial financing to the applicable Purchaser’s Designated Entity for
Purchaser’s acquisition of the Belmont Place Property (the “Seller
Loan”).  The Seller Loan shall be in an amount equal to
$2,250,000.  The applicable Seller and Purchaser shall cooperate, using
commercially reasonable efforts, to obtain the consent of the applicable
Assumption Lender to (a) the recording of a second lien mortgage or deed of
trust, as applicable, against the applicable Property as security for the Seller
Loan; and (b) authorization for AIMCO or its designated affiliate to assume
management responsibilities at the applicable Property in the event of a default
by Purchaser (or the applicable Purchaser’s Designated
Entity) under the applicable Seller Loan (regardless of whether a default has
occurred under the senior Assumed Loan).  In the event the parties are
unable to obtain an Assumption Lender’s consent to the imposition of a second
lien on the applicable Property, such Seller Loan shall be secured by a pledge
of 100% of the ownership interests in such Purchaser’s Designated Entity owning
such Property and providing, without limitation, for AIMCO or its designated
affiliate to assume management of the applicable entity and of the Property upon
a default under such Seller Loan.  Interest shall be payable on the Seller
Loan at a rate of 3.5% for the first three (3) years and at a rate of 4% each
year thereafter until maturity.  Prior to the Closing Date, Purchaser and
Sellers shall agree upon the forms of the loan documents to be executed by the
parties with respect to the Seller Loan (including, without limitation,
promissory notes, which shall not be subject to offset) (collectively, the
“Loan Documents”).  

3.                 
Related Changes.  As a result of the addition of
Section 4.7 to the Agreement set forth above:

(a)               
A new Section 6.3(h) is hereby added to the
Agreement as follows and the existing Section 6.3(h) is hereby
redesignated Section 6.3(i):

“If
applicable and only with respect to the Belmont Place Property, the Loan
Documents to be executed by the Belmont Place Seller (or such other
AIMCO-affiliated entity as such Seller may select); and”

(b)              
A new Section 6.4(g) is hereby added to the
Agreement as follows and the existing Section 6.4(g) is hereby
redesignated Section 6.4(h):

“If
applicable and only with respect to the Belmont Place Property, the Loan
Documents to be executed by Purchaser or Purchaser’s Designated Entity, as
applicable; and”

4.                 
Counterparts.  This Third 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 in this
Third Amendment, all other terms and conditions of the Agreement shall remain
unmodified, the same being ratified, confirmed and republished hereby.

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

[SIGNATURES BEGIN ON FOLLOWING PAGE]


NOW, THEREFORE, the parties hereto have executed this Third
Amendment to Agreement for Purchase and Sale and Joint Escrow Instructions as of
the date first set forth above.

Sellers:

 

	
BELMONT
PLACE APARTMENTS:
	
FOOTHILL
CHIMNEY ASSOCIATES LIMITED PARTNERSHIP, a Georgia limited
partnership

 

By:      
CONCAP EQUITIES, INC., a
Delaware
           
corporation, its general partner 

 

           
By:  /s/Brian J. Bornhorst 

           
Name:  Brian J. Bornhorst

           
Title:  Vice President

           


	
LAUREL
HILLS PRESERVE APARTMENTS:

 
	
AMBASSADOR
IV, L.P., a Delaware limited partnership 

 

By:      
AMBASSADOR IV, INC., a
Delaware
           
corporation, its general partner 

 

           
By:  /s/Brian J. Bornhorst 

           
Name:  Brian J. Bornhorst

           
Title:  Vice President 



 

[SIGNATURES CONTINUED ON NEXT PAGE]

 


Purchaser:

 

JRK
PROPERTY HOLDINGS, INC.,
a California corporation




By: 
/s/Jay Schulman
Name:  Jay Schulman
Title:  President

 

 

JRK
BIRCHMONT ADVISORS LLC,
a Delaware limited liability company

 

By:  
JRK Birchmont Capital Partners LLC,
a California limited liability
company,
its Managing Member

 

By:  
JRK Property Holdings, Inc.,
a California corporation,
its Manager

 

 

By:
 /s/Jay Schulman
Name:  Jay Schulman
Title: 
President