Exhibit 10III
FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT
THIS FOURTH AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is made
and entered into the 10thday of November, 2009 by and between AIMCO COVINGTON
POINTE, L.P., a Delaware limited partnership ("Seller"), and KENNEDY WILSON
AUSTIN, INC., a Texas corporation ("Purchaser").
WI T N E S S E T H:
WHEREAS, Seller and Purchaser are parties to that certain Purchase and Sale
Contract dated September 8, 2009 (the "Contract") pertaining to the purchase and
sale of that certain real property located in Dallas County, Texas more
particularly described on Exhibit A attached thereto and commonly known as the
Covington Pointe Apartments (the "Property"), as amended by that certain First
Amendment to Purchase and Sale Contract dated as of October 8, 2009, by that
certaing Second Amendment to Purchase and Sale Contract dated as of October 14,
2009, and by that certain Third Amendment to Purchase and Sale Contract dated as
of October 16, 2009; and
WHEREAS, the parties have agreed upon certain revised terms for the purchase and
sale of the Property and intend hereby to modify the Contract to reflect the
same, as more particularly set forth hereinafter.
AM E N D M E N T
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
Sellers and Purchaser hereby agree as follows:
1.
FINANCE CONTINGENCY PERIOD.
SECTION 4.5.10 OF THE CONTRACT
IS HEREBY DELETED IN ITS ENTIRETY AND REPLACED WITH THE FOLLOWING:
4.5.10
PURCHASER SHALL HAVE UNTIL NOVEMBER 18, 2009 (THE "FINANCE CONTINGENCY
PERIOD") TO OBTAIN LENDER'S BINDING APPROVAL OF THE LOAN ASSUMPTION AND
RELEASE.
IF PURCHASER DOES NOT OBTAIN FINAL APPROVAL OF THE LOAN ASSUMPTION AND
RELEASE ON TERMS REASONABLY ACCEPTABLE TO PURCHASER WITHIN THE FINANCE
CONTINGENCY PERIOD, THEN THIS CONTRACT SHALL BE DEEMED AUTOMATICALLY TERMINATED
AND OF NO FURTHER FORCE AND EFFECT (SUBJECT TO AND EXCEPT FOR THE SURVIVAL
PROVISIONS) AS OF 5:00 P.M. ON THE DATE OF EXPIRATION OF THE FINANCE CONTINGENCY
PERIOD AND ESCROW AGENT SHALL PAY TO SELLER $30,000.00 OF THE DEPOSIT AND SHALL
RETURN THE REMAINDER OF THE DEPOSIT TO PURCHASER.
For purposes of clarification and not limitation, $30,000.00 of the Deposit
previously paid by Purchaser shall be deemed immediately non-refundable to
Purchaser upon execution of this Amendment and shall be paid to Seller in the
event the Contract terminates for any reason other than as provided in Sections
4.6, 10.2, 11.1 or 12.1 thereof.
The remainder of the Deposit shall become
non-refundable to Purchaser upon the lapse of the Finance Contingency Period
(assuming the Contract is not terminated prior to the expiration thereof).
2.
ACCELERATION OF FINANCING.
PURCHASER AND SELLER ACKNOWLEDGE
THAT THE LOAN DOCUMENTS PERMIT AN UPSIZING OF THE LOAN (THE "LOAN UPSIZING"),
WHICH LOAN UPSIZING PURCHASER DESIRES TO BE ACCOMPLISHED PRIOR TO CLOSING.
AS A
RESULT OF THE FOREGOING, SELLER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO
CAUSE THE LOAN UPSIZING TO CLOSE ON OR BEFORE DECEMBER 1, 2009 AND, IF SO
CLOSED, SUCH LOAN UPSIZING SHALL BE PART