Thirteenth Amendment to Contract for Purchase and Sale of Real Estate, effective as of April 18, 2019, by and between PCY Holdings, LLC, and KB Home Colorado Inc

4.           Purchase and Sale.  Section 1 “Purchase and Sale” as amended by the Tenth and Twelfth Amendments, is hereby deleted in its entirety and replaced with the following:

“1.           Purchase and Sale.  The Property shall be purchased at seven (7) Closings, including the Takedown 1(a) Closing which occurred prior to the Effective Date of this Amendment at which Seller sold and Purchaser purchased the Model Home Lots.  Subject to the terms and conditions of this Contract, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, on or before the dates set forth in Section 8(b), below, the Lots in each Takedown, as generally depicted on the Lotting Diagram and as follows:

At the Takedown 1(a) Closing (“Takedown 1(a) Closing”), four (4) Lots of which 0 are SFD 45’ Lots and 4 are SFD 50’ Lots;

At the Takedown 1(b) Closing (“Takedown 1(b) Closing”), twenty-five (25) Lots of which 14 are SFD 45’ Lots and 11 are SFD 50’ Lots;

At the Takedown 2 Closing (“Second Closing”), twenty-eight (28) Lots of which 17 are SDF 45’ Lots and 11 are SFD 50’ Lots;

At the Takedown 3 Closing (“Third Closing”), twenty-one (21) Lots of which 21 are SFD 45’ Lots and 0 are SFD 50’ Lots;

At the Takedown 4 Closing (“Fourth Closing”), twenty (20) Lots of which 16 are SFD 45’ Lots and 4 are SFD 50’ Lots;

At the Takedown 5 Closing (“Fifth Closing”), thirty-four (34) Lots of which 21 are SFD 45’ Lots and 13 are SFD 50’ Lots; and

At the Takedown 6 Closing (“Sixth Closing”), seventeen (17) Lots of which 17 are SFD 45’ Lots and 0 are SFD 50’ Lots.

5.           Takedown Schedule.  Section 8(b) is hereby amended as follows:

(a)          Takedown 1 Closing Date.  The Takedown 1(a) Closing occurred prior to the Effective Date of this Amendment.  The Takedown 1(b) Closing shall occur on May 16, 2019.

(b)         Takedown 2 Closing Date.  The Takedown 2 Closing shall occur on June 28, 2019 (or such earlier date as agreed upon by the parties in writing) and at least thirty (30) days prior thereto Seller shall Substantially Compete the Finished Lot Improvements for the Takedown 2 Lots and deliver to Purchaser the Completion Notice for the Takedown 2 Lots, subject to Seller’s extension right pursuant to Section 8(b).

(c)        Takedown 3 Closing Date.  The Takedown 3 Closing shall occur on August 30, 2019 (or such earlier date as agreed upon by the parties in writing) and at least thirty (30) days prior thereto Seller shall Substantially Compete the Finished Lot Improvements for the Takedown 3 Lots and deliver to Purchaser the Completion Notice for the Takedown 3 Lots, subject to Seller’s extension right pursuant to Section 8(b).

(d)          Takedown 4 Closing Date.  The Takedown 4 Closing shall occur on April 30, 2020 (or such earlier date as agreed upon by the parties in writing) and at least thirty (30) days prior thereto Seller shall Substantially Compete the Finished Lot Improvements for the Takedown 4 Lots and deliver to Purchaser the Completion Notice for the Takedown 4 Lots, subject to Seller’s extension right pursuant to Section 8(b).

(e)        Takedown 5 Closing Date.  The Takedown 5 Closing shall occur on October 31, 2020 (or such earlier date as agreed upon by the parties in writing) and at least thirty (30) days prior thereto Seller shall Substantially Compete the Finished Lot Improvements for the Takedown 5 Lots and deliver to Purchaser the Completion Notice for the Takedown 5 Lots, subject to Seller’s extension right pursuant to Section 8(b).

(f)          Takedown 6 Closing Date.  The Takedown 6 Closing shall occur on April 30, 2021 (or such earlier date as agreed upon by the parties in writing) and at least thirty (30) days prior thereto Seller shall Substantially Compete the Finished Lot Improvements for the Takedown 6 Lots and deliver to Purchaser the Completion Notice for the Takedown 6 Lots, subject to Seller’s extension right pursuant to Section 8(b).

6.           Letter Agreement.  Seller has requested Buyer, at each Closing enter a letter agreement in the form attached hereto as Schedule 2 (“Letter Agreement”) and Buyer agrees to enter same if, with respect to the applicable Closing, Seller has not obtained the County’s initial acceptance of the public improvements identified under the SIA which are required prior to the County’s issuance of certificates of occupancy (“COs”) for homes located on the Lots being purchased at such Closing.  The Parties have agreed to execute a Letter Agreement for Closings 1(a) and 1(b) as of the Effective Date of this Amendment and Buyer agrees to deliver an original of such Letter Agreement to Seller within three (3) days thereafter.  Seller agrees that neither Buyer’s execution of this Amendment nor Buyer’s later execution of a Letter Agreement, shall alter the obligations of Seller under the Contract with respect to such public improvements, except that the Parties agree that certain of such public improvements will not be completed at the time of Closing (“Uncompleted Work”), and, as between Seller and Buyer, Seller is responsible for the work referenced in the Letter Agreement.  Seller shall indemnify and hold harmless Buyer if Seller fails to perform the Uncompleted Work and the County makes a claim under the Letter Agreement against Buyer, or if, as a result thereof, the County refuses to issue COs for homes on any of the Lots purchased at the applicable Closing; provided, however, that the indemnity shall not apply to the extent Seller substantially completes the Uncompleted Work so that Buyer is not delayed in obtaining any CO.  As security for Seller’s responsibility to satisfy the obligations evidenced by the Letter Agreement, at each Closing where Buyer executes a Letter Agreement, there shall be retained in escrow from Seller’s proceeds the amount of $7,000 per Lot purchased at such Closing (the “Holdback Funds”).  At the Takedown 1(b) Closing, in addition to the Holdback Funds retained with respect to such Takedown 1(b) Lots, there shall be retained in escrow from the Seller’s proceeds, the Takedown 1(a) Holdback Funds equal to $28,000.  The Holdback Funds shall be released to Seller, from time to time on a per Lot basis as the Uncompleted Work is completed as evidenced by initial acceptance by the County of the Uncompleted Work required to obtain COs for the applicable home for such Lot, pursuant to an escrow agreement, the form of which is attached hereto as Schedule 3 to be executed by the Parties at the applicable Closing (“Escrow Agreement”).  Upon substantial completion evidenced by initial acceptance by the County of the Uncompleted Work which is required to obtain COs for the applicable homes for all the Lots subject to the applicable Letter Agreement and associated Escrow Agreement, the balance of the Holdback Funds in escrow shall be released to Seller.  Should the County make demand on Buyer pursuant to the Letter Agreement to perform or pay for any of the Uncompleted Work under the Letter Agreement, Buyer may step in and complete such Uncompleted Work and obtain a reimbursement from the Holdback Funds for same, in accordance with the terms of the Escrow Agreement, with recovery from Seller for reasonable costs incurred in excess of the Holdback Funds in the Escrow Agreement.