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Exhibit 10.147

 

FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT

 

 

THIS
FOURTH AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE AND JOINT ESCROW
INSTRUCTIONS (this “Fourth Amendment”) is made and
entered into as of the 16th day of December, 2008, by and among FOOTHILL CHIMNEY
ASSOCIATES LIMITED PARTNERSHIP, a Georgia limited partnership, and AMBASSADOR
IV, L.P., a Delaware limited partnership, each having an address at 4582 South
Ulster Street Parkway, Suite 1100, Denver, Colorado 80237 (individually a
“Seller” and collectively “Sellers”), and BELMONT
PLACE APARTMENTS, LLC, a Delaware limited liability company, and LAUREL HILLS
APARTMENTS, LLC, a Delaware limited liability company, each having a principal
address at 11766 Wilshire Boulevard, Suite 1450, Los Angeles, California 90025
(individually a “Purchaser” and collectively as
“Purchaser”).

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, the
“Agreement”) pertaining to the purchase and sale of those certain
real properties located in Georgia more particularly described on Exhibits
A-1 and A-2 attached to the Agreement (the
“Properties”).  

B.        
Pursuant to those certain two (2) separate Assignments and Assumptions of
Agreement for Purchase and Sale and Joint Escrow Instructions dated October 12,
2008, JRK assigned its interests in the Agreement to the Purchasers.

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 Section 2.2.2 of the Agreement. 
Section 2.2.2 of the Agreement, regarding the treatment of the
Deposit and sale of the Properties, is hereby deleted in its entirety and
replaced with the following:

“2.2.2  
2009 Sale for Laurel Hills Preserve.  Notwithstanding
anything in this Agreement to the contrary, Sellers and Purchaser agree to
appropriately report for tax and accounting purposes the
transaction described herein with respect to the Laurel Hills Preserve Property
as a deposit in 2008 and a sale in 2009.”

3.                 
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 the Belmont Place Property
shall occur on December 31, 2008, and the Closing for the Laurel Hills Preserve
Property shall occur on January 9, 2009 (each, a “Closing Date”), each
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.”  

4.                 
Utility Pass-Throughts.  Section
6.5.6(c) of the Agreement, regarding the utility pass-throughts to
Tenants, is hereby deleted in its entirety and replaced with the following:

“(c)     
With respect to utility charges and other operating cost pass-throughs
(“Utility Costs”), which are passed through and payable by Tenants under
the Tenant Leases for a Property, there shall be no prorations or credits at
Closing.  Any and all payments for the aforementioned items received by
Purchaser after the Closing shall be retained by Purchaser regardless of when
they were billed (or should have been billed) by the applicable Seller. 
Any and all payments for Utility Costs received by Seller prior to the Closing,
even for a period applicable subsequent to the Closing Date, shall be retained
by the applicable Seller.  Seller shall have the right to continue to bill
Tenants for Utility Costs through the Closing Date, but only in the ordinary
course of such Seller’s business (provided that the Belmont Place Property
Seller shall be entitled to submit bills for Utility Costs to Tenants monthly
during the term hereof, including in December prior to Closing, and the Laurel
Hills Property Seller shall be entitled to submit bills for Utility Costs to
Tenants monthly during the term hereof, including in January prior to
Closing).  After the Closing Date, each Seller’s right to collect such sums
for Utility Costs (including those previously billed for but uncollected as of
the Closing Date) shall cease, provided that Purchaser agrees to take reasonable
actions to collect such Utility Costs sums and shall turn over the same to each
Seller promptly after such collection.  In addition, upon the termination
of a Tenant’s tenancy at a Property, Purchaser agrees to bill such Tenant for
any outstanding Utility Costs incurred but not paid during the applicable
Seller’s ownership of the Property (regardless of whether billed to such Tenant
by the applicable Seller prior to Closing), as such bill will be provided by the
applicable Seller to Purchaser.  Purchaser shall have no obligation to
pursue collection of such bill, however in the event either Purchaser or the
applicable Seller collect on such bill, the amount so collected shall be shared
equally between Purchaser and such Seller.”

5.                 
Counterparts.  This Fourth 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.

6.                 
Ratification.  Except as expressly set forth in this
Fourth Amendment, all other terms and conditions of the Agreement shall remain
unmodified, the same being ratified, confirmed and republished hereby.

7.                 
Governing Law.  This Fourth 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 Fourth
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]

 


Purchasers:

 

	
BELMONT
PLACE APARTMENTS:
	
BELMONT
PLACE 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 

	
LAUREL
HILLS PRESERVE APARTMENTS:

 
	
LAUREL
HILLS 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

 



 

JRK:

 

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