Exhibit 10.23

 

FIRST AMENDMENT TO

PURCHASE AND SALE CONTRACT

 

THIS
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this
"Contract") is entered into as of the 10th day of
November, 2010 (the "Effective Date"), by and between ORP ONE
L.L.C., a Maryland limited liability company, having an address at 4582
South Ulster Street Parkway, Suite 1100, Denver, Colorado 80237
("Seller"), and TMF I FAIRLANE, LLC, a Delaware limited
liability company, having a principal address at 360 N. Michigan Avenue, Suite
1400, Chicago, Illinois 60601 ("Purchaser").

RECITALS:

WHEREAS,
Seller and Purchaser are parties to that certain Purchase and Sale Contract
dated October 11, 2010 (the "Contract"); and

WHEREAS,
Seller and Purchaser desire to amend and ratify the Contract as hereinafter set
forth.

AGREEMENT:

NOW,
THEREFORE, for and in consideration of the mutual covenants and agreements
herein set forth, and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties do hereby amend the Contract
as follows:

1.                 
Capitalized terms not defined herein shall have the meanings set forth in
the Contract.

2.                 
The parties hereto acknowledge and agree that Seller, as defined in the
initial paragraph of the Contract, is a Maryland limited liability
company.  

3.                 
The parties hereto acknowledge and agree that the Feasibility Period
shall expire for all purposes under the Contract on November 10, 2010 and that
Purchaser has accepted the condition of the Property.  Purchaser agrees
that Purchaser's right to terminate the Contract under Section 3.2 is
permanently waived, the Initial Deposit is non-refundable under all
circumstances except as otherwise provided in this First Amendment to Purchase
and Sale Contract and the Contract.    

4.                 
In consideration of the existence of the Association Litigation and as a
result of Purchaser's due diligence investigations with respect to the
Association Litigation, Seller hereby agrees to provide Purchaser with a credit
against the Purchase Price at Closing in an amount equal to $50,000.00
("Association Credit").  The Association Credit shall be in
full satisfaction of Seller's obligation to Purchaser with respect to the
Association Litigation.  In consideration of such Association Credit,
Purchaser hereby agrees to assume the defense of the Association Litigation and
all liabilities and obligations of the Seller in connection with the Association
Litigation at Closing.  Upon Closing, Purchaser shall irrevocably release
Seller from any and all Losses arising from or related to the Association
Litigation.  Purchaser shall take any and all action necessary to obtain
plaintiff's dismissal of Seller, with prejudice, as a party to the Association Litigation, which dismissal shall be effective
upon Closing. If requested by Purchaser, Seller shall, at no cost or expense to
Seller, use reasonable efforts to assist Purchaser in obtaining such
dismissal.  Purchaser shall indemnify, hold harmless and, if requested by
Seller (in Seller's sole discretion), defend (with counsel approved by Seller)
Seller's Indemnified Parties from and against any and all Losses relating to the
Association Litigation.  The provisions of this Section 4 shall survive Closing and delivery of the Deed
to Purchaser.  

5.                 
The Contract is hereby amended to add a new Section 3.9 in
its entirety as follows:

"3.9     
Lender Contingency.  Purchaser represents to Seller that it has
chosen Fannie Mae as the Selected Lender and that is has received a draft
commitment from the Selected Lender, but the draft commitment contains
contingencies that are unacceptable to Purchaser including those relating to the
Selected Lender's continued review of: (a) zoning compliance by the Property;
and (b) matters relating to the Facilities Agreement and the Association
Litigation.  By virtue of such, Seller agrees that Purchaser shall have
until 5:00 PM on November 12, 2010 (the "Lender Contingency
Period") to cause the Selected Lender to remove the unacceptable
contingencies identified in the draft commitment and to issue the Loan
Commitment referenced in Section 4.7.1 of the Contract.  Upon
issuance of such, Purchaser shall comply with the delivery requirements of
Section 4.7.1.  If Purchaser is unable to cause the Selected Lender
to issue the Loan Commitment prior to the end of the Lender Contingency Period,
then Purchaser may provide written notice to Seller terminating this Contract on
or before the expiration of the Lender Contingency Period.  If Purchaser
has not terminated this Contract in writing prior to the expiration of the
Lender Contingency Period as provided herein, Purchaser shall be deemed to have
waived its termination rights under this Section 3.9 and this Contract
shall continue in full force and effect.  If Purchaser properly terminates
this Contract as set forth in this Section 3.9, this Contract shall
terminate, and, notwithstanding any other provision of this Contract, Purchaser
shall be entitled to a return of the Initial Deposit and Seller hereby directs
Escrow Agent to deliver such to Purchaser pursuant to Section 2.3.3 of
the Contract as if the Contract had been terminated pursuant during the
Feasibility Period pursuant to Section 3.2 of the Contract. 
Otherwise, after the expiration of the Lender Contingency Period, Escrow Agent
shall hold and release the Deposit in strict accordance with Section 2.3
of the Contract."

6.                 
Assuming this Contract has not been terminated prior to the end of the
Lender Contingency Period as set forth in Section 3.9, the Additional
Deposit (as defined in Section 2.2.2 of the Contract) shall be
deposited with the Escrow Agent within one (1) Business Day after expiration of
the Lender Contingency Period.

7.                 
An execute copy of this Amendment shall be delivered to Escrow Agent and,
upon delivery to Escrow Agent, Escrow Agent shall be entitled to rely thereon
and shall be authorized to act in conformity herewith.

8.                 
Miscellaneous.  

(a)               
Except as expressly modified hereby, the Contract remains unmodified and
unchanged and Seller and Purchaser hereby ratify and confirm the Contract as
herein amended.

(b)              
This Amendment may be executed in one or more counterparts, each of which
shall constitute an original, but when taken together shall constitute one and
the same Contract.  This Amendment may be executed and delivered by
facsimile or electronic PDFs and when so executed shall be deemed an original
for all purposes and binding upon the parties hereto, and originals shall be
promptly delivered thereafter.  

(c)               
In the event of any conflict between the terms of this First Amendment to
Purchase and Sale Contract and the Contract, the terms and conditions of this
First Amendment to Purchase and Sale Contract shall control.  

 

[Remainder of Page Intentionally Left Blank]




           
NOW, THEREFORE, the parties hereto have executed this First Amendment to
Purchase and Sale Contract as of the date first set forth above.

 

Seller:

 

ORP
ONE L.L.C., 

a
Maryland limited liability company

 

By:      
ORP CORPORATION I,

           
a Maryland corporation,

           
its managing member

 

 

By:
/s/John Spiegleman

Name: 
John Spiegleman

Title: 
Senior Vice President

 

 

Purchaser:

 

TMF
I FAIRLANE, LLC,

a
Delaware limited liability company

 

By: 
/s/David DiSanto

Name: 
David DiSanto

Title:
CFO