_



Exhibit 10.45

 

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 the
purchasing parties identified on the Purchaser Information Schedule attached
hereto as Schedule 3, each having an address at 11766 Wilshire Boulevard,
Suite 1450, Los Angeles, California 90025 (individually a
“Purchaser” and collectively “Purchasers”), and is
joined by AIMCO PROPERTIES, L.P., a Delaware limited partnership (the
“Guarantor”).

RECITALS

 

A.       
Sellers and JRK BIRCHMONT ADVISORS, LLC, a Delaware limited liability company,
JRK PROPERTY HOLDINGS, INC., a California corporation (collectively,
“JRK”) entered into that certain Agreement for Purchase and Sale
and Joint Escrow Instructions, dated September 29, 2008, as amended by that
certain First Amendment to Purchase and Sale Contract dated September 30, 2008,
and that certain Second Amendment to Purchase and Sale Contract dated October 2,
2008 (the “Agreement”) pertaining to the purchase and sale of
those certain real properties located in Colorado, Georgia, Ohio, South Carolina
and Virginia, more particularly described on Exhibits A-1 through A-16
attached to the Agreement (the “Properties”).  In connection
with the Agreement, Guarantor guaranteed certain payment obligations of the
Sellers under the terms of the Agreement, as set forth therein.

B.        
Pursuant to those certain fifteen (15) separate Assignments and Assumptions of
Agreement for Purchase and Sale and Joint Escrow Instructions dated October 10,
2008, JRK assigned its interests in the Agreement to the Purchasers, as set
forth on Schedule 3 attached hereto.

C.       
Sellers and Purchasers intend to further modify the Agreement in certain
respects, as more particularly set forth hereinafter.

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.                 
Amendment to Seller Financing Provision. 
Section 4.6 of the Agreement, regarding the Seller Loans, is
hereby deleted in its entirety and replaced with the following:

At Closing, Sellers (or such other AIMCO-affiliated entity as
Sellers may select) will offer partial financing to the applicable Purchaser’s
Designated Entities for Purchaser’s acquisition of (i) the Runaway Bay I
Property, and (ii) the Webb Bridge Crossing Property (collectively, the
“Seller Loans”).  The Seller Loans shall be in an amount equal to
$3,250,000 with respect to Runaway Bay I and $2,200,000 with respect to Webb
Bridge Crossing.  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 that
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 Runaway Bay I Seller
Loan at a rate of 0% for the first three (3) years and at a rate of 4% each year
thereafter until maturity.  Interest shall be payable on the Webb Bridge
Crossing Seller Loan at a rate of 1.4% 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 Loans (including, without
limitation, promissory notes, which shall not be subject to offset)
(collectively, the “Loan Documents”).  

3.                 
Amendment of Closing Date.  Section 6.2
of the Agreement, regarding the Closing, is hereby deleted in its entirety and
replaced with the following:  

“6.2.    
Closing Date.  The Closing for each of the Properties except
the Copper Mill Property and the Cooper’s Pointe Property shall occur on October
22, 2008 and the Closing for the Copper Mill Property and the Cooper’s Pointe
Property shall occur on October 24, 2008 (each, a “Closing Date”),
through an escrow with Escrow Agent, whereby the Sellers, Purchaser and their
attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.  Notwithstanding the
foregoing, with regard to the Copper Mill Property and the Cooper’s Pointe
Property, Purchaser may elect, at its option and if unable to Close either such
Property on October 24, 2008, to Close such Property on October 29, 2008, by
written notice delivered to the applicable Seller on or before 1:00 p.m. PST on
October 23, 2008.  In addition, if Purchaser has extended the Closing Date
for either the Cooper’s Pointe Property or the Copper Mill Property as provided
in the foregoing sentence, Purchaser may elect, at its option and if unable to
Close either such Property on October 29, 2008, to Close such Property on
October 31, 2008, by written notice delivered to the applicable Seller on or
before 1:00 p.m. PST on October 28, 2008.  In the event that on or before
October 30, 2008, Purchaser has not obtained Loan Assumption Approval for the
Cooper’s Pointe Property, and Purchaser has used its best efforts to obtain such
Loan Assumption Approval with respect to such Property, the Closing Date with
respect to the Cooper’s Pointe Property shall automatically
be extended to November 21, 2008 and the provisions of Section 5.7 of
this Agreement shall apply.  If, under Section 5.7 Purchaser is
unable to obtain Loan Assumption Approval by November 21, 2008 with respect to
the Cooper’s Pointe Property and the applicable Seller has elected to convert
Cooper’s Pointe to a Payoff Property, the Closing Date shall be thirty (30) days
after the Cooper’s Pointe Seller gives notice of its election to convert the
Property to Purchaser.

4.                 
Amendment to Closing Deliveries with Respect to Cooper’s
Pointe.  Each reference in Section 6.3(k) and in
Section 6.4(h) to “Cooper’s Pointe” is hereby deleted from the
Agreement. 

5.                 
Amendment to Closing Deliveries with Respect to Hibben Ferry
I.  A new Section 6.3(m) is hereby added to the Agreement
as follows:

6.3(m) 
With respect to the Hibben Ferry I Apartments Property Closing, an assignment of
such Seller’s interests under that certain Settlement Agreement Regarding Hibben
Ferry II Homeowners Association, Inc. v. Hibben Ferry Recreation, Inc., Hibben
Ferry I Apartment Partners, L.P. and AIMCO/Charleston, LLC dated May 13,
2004.

6.                 
Credit to Purchase Price on Springhouse Property. 
With respect to the Springhouse Property being sold by Charleston – Oxford
Associates Limited Partnership to Springhouse Apartments, LLC (the
“Springhouse Purchaser”), at Closing, Springhouse Purchaser shall
receive a credit against the Applicable Purchase Price for the Springhouse
Property equal to $120,750.00 and Springhouse Purchaser shall assume
responsibility for all deficiencies at the Springhouse Property identified by
the South Carolina Low Income Housing Authority.

7.                 
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 Third 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.

8.                 
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.

9.                 
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:

 

	
GOVERNOR’S
PARK APARTMENTS:

 
	
GOVERNORS
PARK APARTMENTS VII LIMITED PARTNERSHIP, a South Carolina limited
partnership

 

By:    
SHELTER VII GP LIMITED PARTNERSHIP, a South Carolina limited partnership,
its general partner

 

         
By:     SHELTER REALTY
VII CORPORATION,
         
a South
Carolina corporation,
         
its general partner

 

 

         
By:  /s/Brian J. Bornhorst

         
Name:  Brian J. Bornhorst

         
Title:  Vice President

	
 

VILLAGE
GARDENS APARTMENTS:
	
 

SHELTER
PROPERTIES VI LIMITED PARTNERSHIP, a South Carolina limited partnership


 

         
By:       SHELTER REALTY VI
CORPORATION, 

                     
a South Carolina corporation, 

                     
its corporate general partner

 

 

         
By:  /s/Brian J. Bornhorst

         
Name:  Brian J.
Bornhorst
         
Title:  Vice President

 

 

 

	
 
	
 



 


 

	
COPPER
MILL APARTMENTS:

 
	
COPPER
MILL CPGF 22, L.P., a Delaware limited partnership 

 

By:      
CPGF 22 COPPER MILL GP,
L.L.C.,
           
a South Carolina limited liability company, 

           
its general partner 

 

           
By:    CENTURY PROPERTIES
GROWTH
                    
FUND XXII, A CALIFORNIA
LIMITED
                    
PARTNERSHIP, a California
limited
                     partnership,
                     its
member 

 

                    
By:   FOX PARTNERS IV, a
California
                             general
partnership, 

                            
its general partner 

 

                            
By:  FOX CAPITAL MANAGEMENT
                                   
CORPORATION, a California
                                   
corporation, 

                                   
its general partner 

 

                       
By:  /s/Brian J. Bornhorst

         
                       
Name:  Brian J. Bornhorst

           
           
Title:  Vice President 

 

	
SYCAMORE
CREEK APARTMENTS:

 
	
SYCAMORE
CREEK ASSOCIATES, L.P., a Delaware limited partnership

 

By:      
MAE JMA, INC., a Delaware
corporation,
            its
managing general partner 

 

 
By:  /s/Brian J. Bornhorst

 
Name:  Brian J. Bornhorst

 
Title:  Vice President

 



 


 

	
BEXLEY
HOUSE APARTMENTS:

 
	
BEXLEY
HOUSE, L.P., a Delaware limited partnership 

 

By:      
BEXLEY HOUSE 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/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President

 

	
RUNAWAY
BAY I APARTMENTS:

 
	
RUNAWAY
BAY-OXFORD ASSOCIATES L.P., an Indiana limited partnership

 

By:      
OAMCO XXI, L.P., a Delaware
limited
           
partnership, its managing general partner

 

           
By:       OAMCO XXI, L.L.C., a Delaware
limited
                       
liability company,

                       
its general partner

 

                       
By:       OXFORD REALTY FINANCIAL
                                   
GROUP, INC., a Maryland     
                                   
corporation, 

                                   
its managing member

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President 



 


 

	
RUNAWAY
BAY II APARTMENTS:

 
	
RUNAWAY
BAY II-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership

 

By:      
RUNAWAY BAY II
CORPORATION,
           
a Maryland corporation, 

           
its managing general partner

 

           
By:  /s/Brian J. Bornhorst

           
Name:  Brian J. Bornhorst

           
Title:  Vice President 

 

 

	BIG WALNUT
APARTMENTS:

 

 
	
BIG
WALNUT, L.P., a Delaware limited partnership

 

By:      
DAVIDSON DIVERSIFIED PROPERTIES, INC.,
            a
Tennessee corporation,

           
its general partner

 

           
By:  /s/Brian J. Bornhorst

          
Name:  Brian J. Bornhorst

           
Title:  Vice President 

 

	
THE
VILLAS AT LITTLE TURTLE APARTMENTS:

 
	
COLUMBUS
III-OXFORD ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited partnership


 

By:      
OXFORD INVESTMENT CORPORATION, a
           
Maryland corporation, 

           
its managing general partner 

 

By: 
/s/Brian J. Bornhorst

Name: 
Brian J. Bornhorst

Title: 
Vice President 

 

 

	
COOPER’S POINTE APARTMENTS:

 
	
COOPER'S
POINTE CPGF 22, L.P., a Delaware limited partnership 

 

By:  
CPGF 22 COOPER'S POINTE GP,
L.L.C.,
       
a South Carolina limited liability company, 

       
its general partner 

 

       
By:   CENTURY PROPERTIES GROWTH FUND
               
XXII, A CALIFORNIA
LIMITED
               
PARTNERSHIP, a California
limited
               
partnership, 

               
its member 

 

               
By:   FOX PARTNERS IV, a California general
                       
partnership, 

                       
its general partner 

 

                       
By:       FOX CAPITAL MANAGEMENT
                                   
CORPORATION, a California
                                   
corporation, 

                                   
its general partner 

 

                       
By:  /s/Brian J. Bornhorst

                        Name: 
Brian J. Bornhorst

           
           
Title:  Vice President 

 

 

	
HIBBEN
FERRY I APARTMENTS:

 
	
HIBBEN
FERRY I APARTMENT PARTNERS, L.P., a Delaware limited partnership 

 

By:      
AIMCO HOLDINGS, L.P., a Delaware limited
           
partnership, 

           
its general partner 

 

           
By:       AIMCO HOLDINGS QRS, INC., 

                       
a Delaware corporation, 

                       
its general partner 

 

 
By:  /s/Brian J. Bornhorst

 
Name:  Brian J. Bornhorst

 
Title:  Vice President 



  

	
SPRINGHOUSE
APARTMENTS:

 
	
CHARLESTON-OXFORD
ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited
partnership



By:      
AIMCO/CHARLESTON,
L.L.C.,
            a
Delaware limited liability company,

            its
managing general partner 

 

           
By:       AIMCO PROPERTIES, L.P., a Delaware
                       
limited partnership,

                       
its member 

 

                       
By:       AIMCO-GP, INC., a Delaware
                                   
corporation, 

                                   
its general partner 

 

                                   
By:  /s/Brian J. Bornhorst

           
                       
Name:  Brian J. Bornhorst

           
                       
Title:  Vice President 

 

 

	
WEBB
BRIDGE CROSSING APARTMENTS:

 
	
WINTHROP
APARTMENT INVESTORS LIMITED PARTNERSHIP, a Maryland limited
partnership 

 

By:   
WAI ASSOCIATES LIMITED PARTNERSHIP, a
         Texas limited
partnership, 
         its
general partner 

 

        
By:  AIMCO/WAI ASSOCIATES GP, LLC, a  
              
Delaware limited liability company,

              
its general partner 

 

              
By:    AIMCO PROPERTIES, L.P., a Delaware
                       
limited partnership,

                       
its member 

 

                       
By:       AIMCO-GP, INC., a Delaware
                                   
corporation,

                                   
its general partner 

 

                                   
By:  /s/Brian J. Bornhorst

           
             
          Name: 
Brian J. Bornhorst

        
                          
Title:  Vice President




 

	
SCOTCH
PINES EAST APARTMENTS:

 
	
CALMARK/FORT
COLLINS, LTD., 

a
California limited partnership 

 

By:      
CALMARK/FORT COLLINS, INC., 

           
a California corporation, 

           
its corporate general partner

 

           
By:  /s/Brian J. Bornhorst

           
Name:  Brian J. Bornhorst

           
Title:  Vice
President                                        
            

 

 

	
COURTNEY
PARK APARTMENTS:

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

 

By:      
AMBASSADOR XI, 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

 

 

	
GOVERNOR’S
PARK APARTMENTS:

 
	
GOVERNORS
PARK APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Colorado Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President



 


 

	
VILLAGE
GARDENS APARTMENTS:
	
GOVERNORS
PARK APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Colorado Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President 

 

 

	
SCOTCH
PINES EAST APARTMENTS:
	
SCOTCH
PINES EAST APARTMENTS, LLC,
a Delaware limited liability
company

 

By:    
BJP III Colorado Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 

 

	
COURTNEY
PARK APARTMENTS:
	
COURTNEY
PARK APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Colorado Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President 



 


 

	
COURTNEY
PARK APARTMENTS:
	
COURTNEY
PARK APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Colorado Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President

 

 

	
SYCAMORE
CREEK APARTMENTS:
	
SYCAMORE
CREEK APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President

 

 

	
BEXLEY
HOUSE APARTMENTS:
	
BEXLEY
HOUSE APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President

 



 

	
BIG
WALNUT APARTMENTS:
	
BIG
WALNUT APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

           
Title:  President 

 

 

	
RUNAWAY
BAY I APARTMENTS:
	
RUNAWAY
BAY I APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

           
Title:  President 

 

 

	
RUNAWAY
BAY II APARTMENTS:
	
RUNAWAY
BAY II APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 



 

	
VILLAS
AT LITTLE TURTLE APARTMENTS:
	
TURTLE
VILLAS APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III Ohio Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 

 

	
WEBB
BRIDGE CROSSING APARTMENTS:
	
WEBB
BRIDGE APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III East Coast Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 

 

	
COPPER
MILL APARTMENTS:
	
COPPER
MILL APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III East Coast Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 



 

	
COOPER’S
POINTE APARTMENTS:
	
COOPERS
POINTE APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III East Coast Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President

 

 

	
HIBBEN
FERRY I APARTMENTS:
	
HIBBEN
FERRY APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III East Coast Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

         
Title:  President 

 

	
SPRINGHOUSE
APARTMENTS:
	
SPRINGHOUSE
APARTMENTS, LLC,
a Delaware limited liability company

 

By:    
BJP III East Coast Properties, LLC,
a Delaware limited liability
company,
its Managing Member

 

 

         
By:  /s/David S. Walker

         
Name:  David S. Walker

          Title: 
President 

 



 

[SIGNATURES CONTINUED ON FOLLOWING PAGE]


CONSENT AND JOINDER OF AIMCO PROPERTIES, L.P.

AIMCO
Properties, L.P., a Delaware limited partnership and Guarantor of the payment
obligations of Sellers under the terms of the Agreement, hereby (a) consents to
the terms of the foregoing First Amendment, and (b) ratifies, confirms,
reaffirms, and acknowledges its obligations under the Agreement and that certain
Guaranty dated September 29, 2008 executed in connection with the Agreement.

AIMCO PROPERTIES, L.P.
a Delaware limited partnership

By:      
AIMCO-GP, Inc.,

           
a Delaware corporation,

           
its General Partner

 

 

           
By: /s/John
Spiegleman
           
Name: John Spiegleman

           
Its:  Senior Vice President