KBS Legacy PEA no.7 Ex.10.35




Exhibit 10.35
SECOND AMENDMENT
TO
PURCHASE AND SALE AGREEMENT 


THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Second Amendment") is made and entered into effective as of the 12th day of April, 2012, by and between CRESCENT APARTMENTS, LLC, a South Carolina limited liability company ("Seller"), and  KBS Legacy Partners Greer LLC, a Delaware limited liability company ("Greer Buyer"), and KBS Legacy Partners Greer Land LLC, a Delaware limited liability company ("Land Buyer", and collectively with Greer Buyer, the "Buyer"), with reference to the following:
WHEREAS, KBS-Legacy Apartment Community REIT Venture, LLC, a Delaware limited liability company "Venture LLC"),  and Seller entered into that certain Purchase and Sale Agreement with an Effective Date of March 21, 2012 and that certain First Amendment to Purchase and Sale Agreement dated as of April 3, 2012 (collectively, the "Purchase Agreement");
WHEREAS, Venture LLC assigned its rights, title, interest and obligations in, to and under the Purchase Agreement to KBS Capital Advisors LLC, a Delaware limited liability company ("KBS Capital"), and KBS Capital assigned its rights title, interest and obligations in, to and under the Purchase Agreement as such relate to “Commercial Outparcel 1”, “Commercial Outparcel 2” and “Outparcel 4” as depicted on the plat entitled “Summary Plat Crescent Apartments, LLC” recorded in Book 1057, Page 43 (the “Subdivision Plat”) in the office of the Greenville County Register of Deeds (collectively, the "Out Parcels") to Land Buyer and KBS Capital assigned its rights title, interest and obligations in, to and under the Purchase Agreement as such relate to “Parcel 3” shown on the Subdivision Plat (collectively, the "Apartments Parcel") to Greer Buyer.
WHEREAS, Seller and Buyer have agreed to enter into this Second Amendment to set forth their agreement regarding the matters set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree to the following:
1.Terms.  All capitalized terms which are used in this Second Amendment, but not defined herein, shall have the same meanings as ascribed thereto in the Purchase Agreement.  The term "Buyer" as used in the Purchase Agreement shall mean Greer Buyer and Land Buyer collectively.
2.    Seller's Closing Deliveries.  Sections 6.3.1 is hereby deleted and replaced with the following:
"6.3.1  Deeds.  A limited warranty deed and affidavit of consideration in the form of Exhibit E attached hereto and incorporated herein by this reference, conveying to Greer Buyer all of Seller’s right, title and interest in and to the Apartments Parcel (“Apartments Parcel Deed”), and a limited warranty deed and affidavit of consideration in the form of Exhibit E attached hereto, conveying to Land Buyer all of Seller’s right, title and interest

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Alta Crescent - Second Amendment to Purchase and Sale Agreement




in and to the Out Parcels Parcel (“Out Parcels Deed” and collectively with the Apartments Parcel Deed, the "Deed").  The affidavit of consideration attached to the Apartments Parcel Deed shall reference the consideration paid for the Apartments Parcel as an amount equal to $20,650,000 less the reported value of the Personal Property set forth in the Personal Property Tax Affidavit filed by Seller in 2012 (the "PP Tax Affidavit").  Seller acknowledges and agrees that the value of the Personal Property set forth on the PP Tax Affidavit shall not in any event exceed $600,374.00.  The affidavit of consideration attached to the Out Parcels Deed shall reference the consideration paid for the Out Parcels as an amount equal to $150,000."
Notwithstanding anything in this Second Amendment or the Purchase Agreement to the contrary, in the event that Seller determines that it is not permitted to legally convey Outparcel 4 separately from the Apartments Parcel (e.g. by virtue of applicable subdivision regulations or otherwise), then Outparcel 4 shall be conveyed to Greer Buyer together with the Apartments Parcel pursuant to the Apartments Parcel Deed.  
3.    Closing Documents.  Notwithstanding the terms of the Purchase Agreement to the contrary, the Bill of Sale, Assignment of Leases, Assignment of Contracts, Notice to Tenants and Notices to Service providers shall be delivered only to Greer Buyer by Seller and Greer Buyer shall be the only Buyer party to execute and deliver the Assignment of Leases and Assignment of Contracts.
4.    3-14 Audit Deliveries.  Seller agrees to continue to cooperate with Buyer's requests for information and documents in connection with Buyer's 3-14 Audit.  In addition, Seller agrees to deliver the following to Buyer within forty-five (45) days after Closing: i) Detailed income statement for 2012 from January 1, 2012 through Closing Date, ii) Trial balance for 2012 from January 1, 2012 through Closing Date, and iii) General ledger for 2012  from January 1, 2012 through Closing Date.  The provisions of this Section 4 shall survive the Closing.
5.    Personal Property.  Buyer and Seller agree that the list of Personal Property attached as Exhibit "B" to this Second Amendment shall be deemed to be Exhibit "B" to the Purchase Agreement.
6.    Approval Notice.  Upon complete execution and delivery of this Second Amendment by Buyer and Seller, this Second Amendment shall constitute Buyer’s Approval Notice pursuant to Section 4.1 of the Purchase Agreement and Buyer's notice to Seller that Buyer is satisfied with its Due Diligence (including its review of the Title Documents).
7.    Purchase Agreement Ratified.  In all other respects, except as otherwise provided by this Second Amendment, the undersigned hereby ratify and confirm the Purchase Agreement which remains in full force and effect.  Greer Buyer and Land Buyer shall be jointly and severally liable for the performance of Buyer’s obligations under the Purchase Agreement.
8.    Counterparts.  This Second Amendment may be executed in counterparts, each of which shall be deemed an original and all of said counterparts shall constitute but one and the same instrument.  Signatures delivered via facsimile or other electronic means shall be accepted as if original. 

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Alta Crescent - Second Amendment to Purchase and Sale Agreement




IN WITNESS WHEREOF, the parties have executed this Second Amendment to be effective as of April 12, 2012.
BUYER:


KBS LEGACY PARTNERS GREER LLC,
a Delaware limited liability company


By:    KBS LEGACY PARTNERS PROPERTIES LLC,
a Delaware limited liability company,
its sole member


By:    KBS LEGACY PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership,
its sole member


By:    KBS LEGACY PARTNERS APARTMENT REIT, INC.,
a Maryland corporation,
its sole general partner


By:    /s/ W. Dean Henry
Name:    W. Dean Henry
Title:     Executive Vice President 


KBS LEGACY PARTNERS GREER LAND LLC, 
a Delaware limited liability company


By:    KBS LEGACY PARTNERS PROPERTIES LLC,
a Delaware limited liability company,
its sole member


By:    KBS LEGACY PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership,
its sole member


By:    KBS LEGACY PARTNERS APARTMENT REIT, INC.,
a Maryland corporation,
its sole general partner


By:    /s/ W. Dean Henry    
Name:    W. Dean Henry
Title:     Executive Vice President 







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Alta Crescent - Second Amendment to Purchase and Sale Agreement






SELLER:


CRESCENT APARTMENTS, LLC, a 
South Carolina limited liability company


By:    WP Crescent, L.L.C.,    a Georgia
limited liability company, its manager


By:    WP East Development Enterprises, L.L.C.,
a Delaware limited liability company, 
its sole manager


By:    Wood Real Estate Investors, L.L.C., a     
Delaware limited liability company, 
its manager


By:  /s/ David E. Thompson
Name:    David E. Thompson
Title:    Vice President





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Alta Crescent - Second Amendment to Purchase and Sale Agreement












Model Inventory:
Apt 707
Kitchen:
Bar Area- 3 small plates, clear vases, 4 steak knives, 4 forks, 2 green small plates, 1 metal basket, 1 wooden salad bowl w/ wooden utensils, cookbook
Silver tins- "flour and coffee", small statue of bean pod- Right of Stove
Left of Stove- Martini Shaker, martini glass (2), tray, large fake acorn
Desk- black leather organizer, 2 planners, 1 small spiral notebook, 10 pencils, 1 pen, 1 small statue of "&", 1 small journal, 1 decorative book, desk lamp, 1 chair
Above Cabinets- green mossy plant in modern basket, 1 abstract art, 1 large pear, wooden ball,
On wall right of laundry- 1 art piece, behind front door- 1 art piece
Laundry area: 3 hand towels, 2 full towels, 1 basket
Master Bedroom:
Closet- 5 Hangers, 2 storage bins
Large dresser, mirror above, wood/feather plant, and blue case on dresser
White sitting chair, pillow, blanket, 1 small painting above chair, lamp in corner, curtain rod, white and blue drapes (2)
King Bed w/ green, white, blue bedding, euro pillow (3), 2 queen pillows, 1 decorative pillow, breakfast tray, 2 coffee mugs, silver tea pot, white vase, 2 blue napkins with rings
Left of Bed- Small round table, candle in blue vase, "o" modern carving
Right of Bed- Large round table, journal, book, clear jug, radio, plant on large plate
2 silver lamps on wall extending over bed, 2 large paintings
Master Bathroom:
Bronzed shower curtain rod, oversized chocolate/white shower curtain, small plant
1 large towel, 1 wash cloth and back scrubber
1 brown and white rug
1 pewter corner table with 2 small blue vases w/ tea light candles
1 large plant right of sink, small wooden tray w/ soap brush, 3 small cloths





Left of sink- lamp, tray w/ soap, small blue box, 1 wire art piece on wall
1 painting over the toilet, 2 large and 2 medium blue towels, small wooden leaf carving
Dining Room:
1 Table
4 Chairs
2 Place Settings(2plates)
2 Glasses
2 Place Mats
2 Napkins w/ rings
1 Center Tree Decor
1 Picture
Living Room:
1 "L" Shaped Couch- 5 Decorative Pillows and a blanket, 1 picture above the couch
l Over the sofa Lamp
1 Leather Ottoman
1 Metal Side Table- 1 Ivory Horn, 1 Candle Holder, 1 Metal Bowl w/ decorative balls
1 Chair w/ decorative pillow
1 Wooden Side Table
2 Pictures above the chair
2 Curtain Panels- 1 rod
2 Decorative Vases on Floor
1 T.V. Stand- 1 Picture above tv stand
1 Picture above Thermostat
Guest Bathroom:
2 Rags
2 Towels





3 Hand towels
1 Rug
1 book
1 Bar of Soap on Rags
1 Bath Salts tube
1 Decorative Votive Figurine
1 Decorative Box on Toilet w/ Candle and Sponge
1 Picture over Toilet
1 Hamper
Hallway Near Guest Bathroom:
1 Picture
2 Candle Holders w/ Candles
Guest Bedroom:
Queen Bed-Comforter w/ 5 pillows
2 Pictures Over Bed
1 Floor Lamp
2 Night Tables
1 Basket
2 Books w/ Decorative Bowl
1 Wooden Box
1 Table Lamp w/ two candle holders and one vase
2 Panel Curtain
1 Rod
3 Hangers
2 Closet Storage Boxes
1 Wicker basket in closet





1 Tree Decor- Floor
1 Chest of Drawers
1 Silver bowl w/ 3 topiary bowls
1 Wooden treasure box
1 Large picture
Porch:
2 Chairs
1 Side Table





Manager's Office:
1    wooden filing cabinet
1    desk
2    client chairs
1    manager's chair
3    pictures
2    curtain panels
2    vases
1    decoratie plant
1    trash can
1    phone
1    Dell Computer


Leasing Area:
2    desks
4    client chairs
2    lamps
1    filing cabinet
1    picture
4    curtain panels
2    trash cans
2    phones
2    Dell Computers


Clubhouse:
1    easel with paint board
1    vase with 3 books
1    sofa table - two books, one lamp
1    couch, seven pillows
2    chairs
2    side tables - decorative tree, two books with plant
      Coffee table - 1 basket with wooden decor balls, two wooden candles
3    Stools at fire place
1    rug
1    over the sofa lamp
1    vase by fireplace
1    ivory horn on firplace
1    mirror by fireplace
1    painting over fireplace
2    leasing tables - six chairs
4    side tables· decorative tree, two books with plant
2    candle sticks
1    decorative plate
1    picture by leasing table
1    decorative plate on side table
8    curtain panels
4    chairs at backdoor of clubhouse
1    table lamp on leasing table
1    rug by community legend
2    pictures near legend
4    pictures in entry way
1    bench with large pillow
4    rocking charis at front of clubhouse
2    large plant pots





5    decorative plants at water feature
1    water feature
1    additional office laptop
1    Kenmoore Mini Fridge
1    Whirlpool Ice Maker
2    Cigarette Disposal Lamps


Billiards Room:
2    flat screens
2    pictures
4    barstools
1    flavia coffee machine
3    metal wall art
1    painted decorative tree, one silver vase, one canister, one trash can
1    pool table
1    couch, two side tables, two lamps, two trays w/ decor, 1 silver vase, 5 pillows
2    chairs - side table with lamp
2    window cushions, five pillows, two tables, two decorative plants, four stools
2    2 computers - Right S/N: CN-OU072N-64180-99R-0VXS
      Left S/N: NC0G331 H-64180-87MOPLS-A00
      Tower Right: S/N: 9KCGHHI
      Tower Left: S/N: 2KCGHH1
1    Printer S/N: ONF565-772211-86G-0992
2    Chairs
1    floor vase
3    pictures in business area
1    corkboard


Fitness Area:
1    book shelf, 8 books, 1 plate holder w/ wooden leaf, three candles
1    sand vase
10  pictures
3    flat screens
1    clock
      free weights
2    recumbent bikes
2    elliptical machines
2    treadmills
1    lateral pull down
1    bench
1    leg curl
1    multi press
7    equipment mats
2    pictures above water fountain


Work Room:
2    phones
2    chairs
1    laptop - S/N: 00144-484-348-445
1    laptop for resident check out (extra)
1    music system/tv system
3    chairs
1    filing room
1    picture





1    refrigerator
1    microwave
1    dishwasher
1    toaster
1    brew station
1    printer S/N: HBF21790
1    Check scanner
1    payment box
1    Key Storage System
2    Shredders
2    white boards - one large and one small
1    Corkboard


Pool Furniture:
3    Benches
2    High Tables
8    High Chairs
4    Umbrellas
30  Lounge Chairs
5    Small Side Tables
2    Small Tables
8    Small Chairs
4     Trash Cans
7     Large Planters
13   Signs
1     Shephard's Hook
1     Life Buoy


Grilling Area:
2    Gas Grills
2    Tables
4    Chairs
2    Trashcans


MISC:
1     Dumpster/Compactor
4     Art/Wall Art
2     Stools
240 Microwaves
240  Refrigerators
240  Ranges/Ovens
240  Dishwashers