Exhibit
10.2

     

    FIRST AMENDMENT TO PURCHASE AND

    SALE
AGREEMENT AND JOINT ESCROW INSTRUCTIONS

     

    THIS
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS
(this “First Amendment”)
is made as of January 20, 2010, by and between SPT-LAKE ELSINORE HOLDING CO.,
LLC, a Delaware limited liability company (“Seller”), and D. R. HORTON LOS
ANGELES HOLDING COMPANY, INC., a California corporation (“Buyer”), with reference to the
facts set forth below.

     

    RECITALS

     

    A.           Seller
and Buyer entered into a Purchase and Sale Agreement and Joint Escrow
Instructions dated as of December 8, 2009 (the “Agreement”), with respect to
sixty five (65) single family residential Lots and six (6) lettered lots in
recorded Tract No. 31792 located in the City of Lake Elsinore (the “City”), Riverside County (the
“County”), California,
as more particularly described in the Agreement.

     

    B.           The
parties desire to amend the Agreement as provided below.

     

    NOW,
THEREFORE, in consideration of the Recitals set forth above, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as set forth below.

     

    1.           Definitions.  All
terms with initial capital letters used herein but not otherwise defined shall
have the respective meanings set forth in the Agreement.

     

    2.           Purchase
Price.  Section 2 of the Agreement is hereby deleted in its
entirety and replaced with the following:

     

    “2.  Purchase
Price.  The “Purchase
Price” for the Property shall be Two Million Two Hundred Thirty One
Thousand Seven Hundred Seventy Five Dollars ($2,231,775) payable all cash at
Close of Escrow (as hereinafter defined).”

     

    3.           Second
Deposit.  The first sentence of Section 3(b) of the Agreement
is hereby deleted in its entirety and Buyer will have no obligation to make the
Second Deposit.  All references in the Agreement to the Second Deposit
are hereby deleted.  The term “Deposit” as used in the Agreement shall
refer only to the First Deposit.

     

    4.           Close of
Escrow.  Section 4(c) of the Agreement is hereby amended to
change the Closing Date from “January 14,
2010”  to “January 26,
2010.”

     

    5.           Due Diligence
Period.  Section 5(b) of the Agreement is hereby amended to
change the date for expiration of the Due Diligence Period from “January 14,
2010”  to “January 26,
2010.”

     

    6.           Amendment of Other
Dates.  Section 10(a)(vii) of the Agreement is hereby amended
to change “January 14,
2010”  to “January 26,
2010” each time such date appears.  Section 20 of the Agreement
is hereby amended to change “January 7,
2010”  to “January 19,
2010.”

     

    
      
        
        

      

      
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    7.           Subdivision Improvement
Agreements.  Section 34(b) of the Agreement is hereby deleted
in its entirety and replaced with the following:

     

    “b.  Prior
to the Close of Escrow, Seller shall have entered into one or more Subdivision
Improvement Agreements (the “SIA’s”) with the City and
County relating to the construction of certain in-tract subdivision
improvements, off-site improvements and, with respect to the common area
(lettered lots), landscape improvements (collectively, the “Improvements”), and in support
of the SIA’s, Seller agrees to post bonds (the “Bonds”) with the City and
County as more particularly described on Exhibit
“H” attached hereto.  Seller has completed (or prior to the
Close of Escrow will complete) the Improvements that were not completed by the
prior owner and Seller is currently processing bond reductions to reduce the
amount of the Bonds.  Upon acceptance of the bond reductions by the
City and County, it is anticipated that the bond amounts required to be posted
with the City and County will be equal to the amounts shown on Exhibit
“H” under the column title “New Amount”.  If the bond
reductions are not accepted by the City prior to the Close of Escrow, then
Seller will remain obligated after the Close of Escrow to obtain such
acceptance, which obligation shall survive the Close of Escrow.  With
respect to the Bonds representing off-site improvement bonds, a one-year
maintenance period will run from the date of acceptance by the City or County,
as applicable.  Seller will inform Buyer as soon as County acceptance
has occurred and the scheduled expiration date of the 1-year maintenance period
under the SIA’s and will provide Buyer with reasonable written evidence of the
County’s acceptance thereof.  Notwithstanding the foregoing, Seller
must post the Bonds with the City prior to the Close of Escrow in a manner
sufficient to obligate Lennar to deliver the Lennar Release
Documents.

     

    Seller
shall maintain the Bonds in place as required by the SIAs.  Buyer
agrees to reimburse Seller for the actual amount of premiums for the Bonds
incurred by Seller during the period beginning on the later of (i) the Close of
Escrow or (ii) the date Seller delivers to Buyer written evidence of the City’s
and County’s acceptance of the Improvements and the reduction of the Bonds to
the “New Amounts”  and ending when Buyer completes the Adjacent
Improvements Obligations (as defined below).  Such reimbursements will
be paid within thirty (30) days after delivery to Buyer of a written statement
detailing such Bond premiums.  Payments received after the expiration
of the thirty (30) day period shall bear a late charge of five percent (5%) of
the delinquent amount as an agreed liquidation of Seller’s additional
administrative costs incurred by Seller due to any late payment by
Buyer.

     

    
      
        
        

      

      
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    After the
Close of Escrow, Buyer will be responsible for typical repair and replacement of
the Improvements immediately adjacent to the Lots as required by the SIAs to the
extent the Improvements are damaged following the Close of Escrow (“Adjacent
Improvements Obligations”).  If the City
requires slurry seal to complete the repair and replacement of the street
Improvements immediately adjacent to the Lots, then, as part of the Adjacent
Improvement Obligations, Buyer will either complete the slurry seal of the
street Improvements immediately adjacent to the Lots or pay to Seller Buyer’s
pro rata share of the cost to slurry seal all of the street Improvements based
on the ratio between the area of the street Improvements immediately adjacent to
the Lots and the total area of the street Improvements, which payment will be
made within thirty (30) days after delivery of a detailed statement of the costs
to complete the slurry seal.  However, the Adjacent Improvements
Obligations exclude (i) any repair or replacement of such Improvements required
due to defects in the design or construction of the Improvements or (ii) other
than the slurry seal of adjacent street Improvements, work that is not typical
repair or restoration.  Buyer will commence work on the Adjacent
Improvements Obligations within forty-five (45) days after issuance of a final
certificate of occupancy for the last residence to be constructed on the Lots
and complete the Adjacent Improvements Obligations within ninety (90) days
thereafter, but in no event later than two (2) years from the Close of Escrow,
subject to extension due to market conditions if Buyer is using reasonable
efforts to market and sell the residences.  To secure Buyer’s
obligations to timely complete the Adjacent Improvements Obligations, Buyer will
deliver to Seller, within ten (10) business days after the  Close of
Escrow, an irrevocable standby letter of credit in the amount of $102,000,
issued by Wachovia Bank, Bank of America, NA or a similar financial institution
and substantially in the form attached hereto as Exhibit
“L” (the “LOC”).  If
Buyer defaults in its obligations to timely perform the Adjacent Improvements
Obligations, and Buyer does not commence to cure such default within ten (10)
days after receipt of written notice from Seller and thereafter fully complete
the Adjacent Improvements Obligations within ninety (90) days after
commencement, Seller will have the right to immediately draw on the LOC in full
and, at its option, to complete the Adjacent Improvements Obligations to the
extent necessary to cause the Bonds to be released.  If the actual
costs incurred by Seller to complete the Adjacent Improvements Obligations,
including an administrative fee of 15% of all other costs incurred by Seller in
completing the Adjacent Improvements Obligations, exceed the amount of the LOC,
then Seller shall present an invoice Buyer detailing the costs incurred by
Seller, and Buyer shall reimburse Seller for the excess costs incurred by Seller
within thirty (30) days of the date Seller delivers the invoice to
Buyer.  If Seller elects to perform Adjacent Improvements Obligations
and the costs incurred by Seller with respect thereto are less than the amount
of the LOC, Seller may retain the difference in liquidation of Buyer’s failure
to timely complete the Adjacent Improvements Obligations.  Upon
Buyer’s completion of the Adjacent Improvements Obligations, Seller will return
the original LOC to Buyer or, if Seller draws on the LOC due to a notice of
non-renewal thereof from the issuer, Seller will pay such draw proceeds to
Buyer.

     

    
      
        
        

      

      
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    In
addition, Buyer agrees to repair any damage to the Improvements that are not
immediately adjacent to the Lots to the extent caused by Buyer or its agents,
employees or contractors.  Time is of the essence of each of the
foregoing provisions.”

     

    8.            
Participation
Agreement.  Section 2 of the Participation Agreement is deleted
in its entirety and replaced with the following:

     

    “2.  Participation
Amount.  Seller shall be entitled to receive fifty percent
(50%) of any Gross Profit that exceeds a twenty-four percent (24%) Gross Profit
Margin on the sale of the Units to be developed by Buyer on the Lots (the “Participation
Amount”).”

     

    9.            Fee
Reductions.  The parties anticipate that Buyer will be required
to pay the fees in the amounts (the “Expected Fee Amounts”) described in the
Fee Schedule attached hereto as Attachment “A” (the “Fee Schedule”) upon the
issuance of building permits for each residence to be constructed on a
Lot.  If the City, the County or other governmental agency reduces the
actual fee amounts payable by Buyer to be less than the Expected Fee Amounts
shown on the Fee Schedule, then Buyer will pay Seller an amount for each Lot
equal to the difference between the actual fee amounts payable by Buyer and the
Expected Fee Amounts for such Lot.  Such payment will be made within
thirty (30) days after Buyer obtains a building permit for a Unit on such
Lot.

     

    10.           Miscellaneous.  Except
as modified by this First Amendment, the Agreement shall remain in full force
and effect.  In the event of any inconsistencies between this First
Amendment and the Agreement, this First Amendment shall control.  This
First Amendment may be executed in counterparts, each of which, when taken
together, shall constitute one fully executed original.  Facsimile
signatures shall be binding for all purposes of this First
Amendment.

     

    [Remainder
of Page Intentionally Left Blank]

     

    
      
         


      

      
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    11.           CORPORATE
APPROVAL OF BUYER.  NOTWITHSTANDING ANYTHING CONTAINED IN THIS
FIRST AMENDMENT TO THE CONTRARY, NEITHER THIS FIRST AMENDMENT NOR ANY FURTHER
AMENDMENT TO THE AGREEMENT SHALL BE A VALID AND ENFORCEABLE OBLIGATION OF BUYER
UNLESS SUCH AMENDMENT IS EXECUTED BY EITHER ONE OF DONALD R. HORTON, DONALD J.
TOMNITZ, STACEY DWYER, OR BILL WHEAT, EACH AN OFFICER OF BUYER, ON OR BEFORE
JANUARY 26, 2010, FOR THIS FIRST AMENDMENT OR WITHIN TEN (10) BUSINESS DAYS OF
THE EXECUTION OF SUCH FURTHER AMENDMENT BY SELLER AND BUYER’S
REPRESENTATIVES.

     

    IN
WITNESS WHEREOF, the parties have caused this First Amendment to be executed as
of the date first above-written.

     

    
      
        
          
            
              
                
                  
                    
                      	
                              SELLER:

                            	 
      	
                              BUYER:

                            
	 	 	 
	
                              SPT-LAKE
      ELSINORE HOLDING CO., LLC,

                              a
      Delaware limited liability company

                            	 
      	
                              D.R.
      HORTON LOS ANGELES HOLDING

                              COMPANY,
      INC., a California corporation

                            
	 	 	 	 	 
	
                              By:

                            	
                              Shopoff
      Partners, L.P., a Delaware limited 

                            	 
      	
                              By:

                            	/s/
      Stephen
      H. Fitzpatrick
	 	partnership, sole
      member	 
      	
                              Name:

                            	
                              Stephen
      H. Fitzpatrick

                            
	 	 	 	 	
                              Title:

                            	
                              Vice
      President

                            
	 
      	
                              By:

                            	
                              Shopoff
      General Partner, LLC, a

                              Delaware
      limited liability company,

                              general
      partner

                            	 
      	 	 
	 	 	 	 	 	 	 
	 
      	 
      	
                              By:

                            	
                              Shopoff
      Properties Trust, Inc., a

                              Maryland
      corporation, manager

                            	 
      	 
      	 
      
	 	 	 	 	 	 	 	 
	 
      	 
      	 
      	
                              By:

                            	/s/
      William A. Shopoff	 
      	 
      	 
      
	 
      	 
      	 
      	 
      	
                              William
      A. Shopoff,

                              President
      and CEO

                            	 
      	 
      	 
      


                    

                  

                

              

            

          

        

      

      


      
        
          
            
              
                
                  	
                          BUYER’S

                        	
                          By:

                        	/s/
      Stacey H. Dwyer
	
                          CORPORATE
      APPROVAL:

                        	
                          Name:

                        	 
      
	 
      	
                          Title:

                        	Executive
      Vice President
	 
      	 
      	
                          As
      an Officer of Builder and Not In

                        
	 
      	 
      	
                          His/Her
      Individual Capacity

                        
	 
      	 
      	 
      
	 
      	Date
      of Execution:  January 26,
2010


                

              

            

          

        

      

       

      
        
          
          

        

        
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      CONSENT
OF ESCROW AGENT

       

      The
undersigned Escrow Agent hereby agrees to (i) accept the foregoing
Agreement (as amended), (ii) be Escrow Agent under said Agreement and
(iii) be bound by said Agreement in the performance of its duties as Escrow
Agent; provided, however, the undersigned shall have no obligations, liability
or responsibility under (i) this Consent or otherwise unless and until said
Agreement, fully signed by the parties, has been delivered to the undersigned or
(ii) any subsequent amendment to said Agreement unless and until the same
shall be accepted by the undersigned in writing.

       

      Dated:
1/26/2010

       

      
        
          
            
              	
                      First
      American Title Insurance Company 

                      (“Escrow
      Agent”)

                    
	 
      	 
      
	
                      By:

                    	/s/
      Jeanne Gould


            

          

        

      

      


      
        
          
             


          

          
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      Attachment
“A”

    

     

    Fee
Schedule

     

    
      
        
          
            
              
                	
                        City
      of Lake Elsinore Impact Fees

                      	 	
                        Fee
      per Unit

                      	 	 	
                        Qty

                      	 	 	
                        Total

                      	 	
                        Comments

                      
	
                        TUMF

                      	 	$	8,872.00	 	 	 	
                        64

                      	 	 	$	567,808.00	 	
                        Lot
      140 paid

                      
	
                        EVMWD
      Fees (sewer connection)

                      	 	$	7,790.00	 	 	 	 	 	 	$	490,770.00	 	 
      
	
                        EVMWD
      Fees (sewer – Centex reimb.)

                      	 	$	737.00	 	 	 	 	 	 	$	46,431.00	 	 
      
	
                        EVMWD
      Fees (water connection)

                      	 	$	7,768.00	 	 	 	
                        63

                      	 	 	$	489,384.00	 	
                        Lots
      135 and 136 paid

                      
	
                        EVMWD
      Fees (Centex reimb.)

                      	 	$	3,839.00	 	 	 	 	 	 	$	241,857.00	 	 
      


              

            

          

        

      

    

     

    Attachment
“A”

     

    
      
         


      

      
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    Exhibit
“L”

     

    Form of
Letter of Credit

     

    
      	
              BENEFICIARY:

            	
              SPT-LAKE
      ELSINORE HOLDING CO., LLC

            
	 
      	
              C/O
      SHOPOFF ADVISORS, L.P.

            
	 
      	
              8951
      RESEARCH DRIVE

            
	 
      	
              IRVINE,
      CALIFORNIA  92618

            


    

    


    
      
        	
                APPLICANT:

              	
                D.R.
      HORTON LOS ANGELES HOLDING COMPANY, INC.

              
	 
      	
                2280
      WARDLOW CIRCLE

              
	 
      	
                CORONA,
      CALIFORNIA 92880

              
	 
      	 
      
	
                AMOUNT:

              	
                USD
      102,000.00

              


      

    

    


    EXPIRY
DATE AND PLACE:  JANUARY 26, 2012,  AT
_____________________________

    


    WE HEREBY
ESTABLISH OUR IRREVOCABLE STANDBY LETTER OF CREDIT IN YOUR FAVOR AVAILABLE FOR
PAYMENT BY YOUR DRAFT(S) AT SIGHT DRAWN ON _______________________ BANK,
____________________, __________________, AND ACCOMPANIED BY DOCUMENTS AS
SPECIFIED BELOW:

    


    1.  THIS
ORIGINAL STANDBY LETTER OF CREDIT, AND AMENDMENT(S), IF ANY.

    


    2.  BENEFICIARY'S
SIGNED AND DATED STATEMENT INDICATING TITLE OF AUTHORIZED SIGNER(S) AND WORDED
AS FOLLOWS:

    


    “SPT-LAKE
ELSINORE HOLDING CO., LLC IS ENTITLED TO DRAW THE AMOUNT(S) DRAWN HEREWITH
PURSUANT TO THAT CERTAIN PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS BETWEEN SPT-LAKE ELSINORE HOLDING CO., LLC, AND D.R. HORTON
LOS ANGELES HOLDING COMPANY, INC., DATED AS OF DECEMBER 8, 2009, AS AMENDED
BY THAT CERTAIN FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS DATED AS OF JANUARY 20, 2010, AS MAY BE FURTHER AMENDED AND/OR
RESTATED FROM TIME TO TIME.”

    


    SPECIAL
CONDITIONS:

    


    
      	
              1.

            	
              PARTIAL
      DRAWINGS ARE PERMITTED.  FOLLOWING ANY PARTIAL DRAW,
      ____________________ BANK WILL ENDORSE THE ORIGINAL LETTER OF CREDIT TO
      REFLECT THE REDUCED AMOUNT AND RETURN TO THE
  BENEFICIARY.

            


    

     

    Exhibit “L”

     

    
      
        
        

      

      
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              2.

            	
              MULTIPLE
      DRAWINGS ARE PERMITTED.

            


    

     

    3.  IT IS
A CONDITION OF THIS LETTER OF CREDIT THAT IT SHALL BE AUTOMATICALLY EXTENDED
EACH YEAR WITHOUT AMENDMENT OR NOTICE FOR AN ADDITIONAL PERIOD OF ONE (1) YEAR
FROM THE EXPIRY DATE HEREOF OR ANY FUTURE EXPIRY DATE, UNLESS AT LEAST THIRTY
(30) DAYS PRIOR TO ANY EXPIRATION DATE, WE SHALL NOTIFY THE BENEFICIARY BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED OR BY OVERNIGHT COURIER SERVICE BY A
NATIONALLY-RECOGNIZED OVERNIGHT COURIER THAT PROVIDES PROOF OF DELIVERY AT THE
ABOVE ADDRESS (OR AT SUCH OTHER ADDRESS AS BENEFICIARY MAY DESIGNATE TO ISSUER
IN WRITING), THAT WE ELECT NOT TO EXTEND THIS LETTER OF CREDIT FOR ANY SUCH
ADDITIONAL PERIOD.  HOWEVER, IN THE EVENT SUCH NOTICE IS GIVEN, YOU
MAY DRAW THE THEN FULL AVAILABLE AMOUNT OF THIS LETTER OF CREDIT BY MEANS OF
YOUR DRAFT ON _____________ BANK, ______________________, ________________, AT
SIGHT ACCOMPANIED BY THIS ORIGINAL STANDBY LETTER OF CREDIT, AND AMENDMENT(S) IF
ANY, WITHOUT PRESENTING DOCUMENTARY REQUIREMENT NUMBER 2.

    


    4.  WE
HEREBY AGREE WITH YOU THAT IF DRAFTS ARE PRESENTED TO _______________ BANK UNDER
THIS LETTER OF CREDIT AT OR PRIOR TO 10:00 A.M. PACIFIC TIME ON A BUSINESS DAY,
AND PROVIDED THAT SUCH DRAFTS PRESENTED CONFORM WITH THE TERMS AND CONDITIONS OF
THIS LETTER OF CREDIT, PAYMENT SHALL BE MADE BY US IN IMMEDIATELY AVAILABLE
FUNDS BY OUR CLOSE OF BUSINESS ON THE SAME BUSINESS DAY.  IF DRAFTS
ARE PRESENTED TO ____________ BANK UNDER THIS LETTER OF CREDIT AFTER 10:00 A.M.
PACIFIC TIME ON A BUSINESS DAY, AND PROVIDED THAT SUCH DRAFTS CONFORM WITH THE
TERMS AND CONDITIONS OF THIS LETTER OF CREDIT, PAYMENT SHALL BE INITIATED BY US
IN IMMEDIATELY AVAILABLE FUNDS BY OUR CLOSE OF BUSINESS ON THE NEXT SUCCEEDING BUSINESS
DAY.  AS USED IN THIS LETTER OF CREDIT, "BUSINESS DAY" SHALL MEAN ANY
DAY OTHER THAN A SATURDAY, SUNDAY OR A DAY ON WHICH BANKING INSTITUTIONS IN THE
STATE OF CALIFORNIA ARE AUTHORIZED OR REQUIRED BY LAW TO CLOSE.  IF
THE EXPIRATION DATE FOR THIS LETTER OF CREDIT SHALL EVER FALL ON A DAY WHICH IS
NOT A BUSINESS DAY THEN SUCH EXPIRATION DATE SHALL AUTOMATICALLY BE EXTENDED TO
THE DATE WHICH IS THE NEXT BUSINESS DAY.

     

    Exhibit
“L”

     

    
      
        
        

      

      
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    THIS
LETTER OF CREDIT
SETS FORTH IN FULL THE TERMS OF OUR UNDERTAKING, AND SUCH UNDERTAKING SHALL NOT
IN ANY WAY BE MODIFIED, AMENDED OR AMPLIFIED BY REFERENCE TO ANY NOTE, DOCUMENT,
INSTRUMENT OR AGREEMENT REFERRED TO HEREIN OR IN WHICH THIS CREDIT IS REFERRED
TO OR TO WHICH THE CREDIT RELATES AND ANY SUCH REFERENCE SHALL NOT BE DEEMED TO
BE INCORPORATED HEREIN BY REFERENCE.  NOTWITHSTANDING ANY REFERENCE IN
THIS LETTER OF CREDIT TO ANY PURCHASE AGREEMENT OR OTHER DOCUMENT, INSTRUMENT OR
AGREEMENT, AND NOTWITHSTANDING ANY REFERENCE IN ANY PURCHASE AGREEMENT OR OTHER
DOCUMENT, INSTRUMENT OR AGREEMENT TO THIS LETTER OF CREDIT, THIS LETTER OF
CREDIT CONTAINS THE ENTIRE TERMS OF THE UNDERTAKING OF ISSUER TO BENEFICIARY
UNDER THIS LETTER OF CREDIT.

     

    ALL SIGHT
DRAFT(S) MUST STATE “DRAWN UNDER _____________ BANK, ___________________,
______________, IRREVOCABLE STANDBY LETTER OF CREDIT NO. ______________
DATED ____________,” AND MUST BE SIGNED AND ENDORSED BY AN AUTHORIZED SIGNER OF
SPT-LAKE ELSINORE HOLDING CO., LLC  AND INDICATE THE TITLE OF THE
PERSON SIGNING.

    


    ISSUER
WAIVES ANY RIGHTS IT MAY HAVE TO SUBROGATE TO ANY RIGHTS OR CLAIMS BENEFICIARY
MAY HAVE AGAINST APPLICANT OR APPLICANT MAY HAVE AGAINST
BENEFICIARY.

    


    EXCEPT SO
FAR AS OTHERWISE EXPRESSLY STATED, THIS CREDIT IS ISSUED
SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES 1998 ("ISP98"),
INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590.

     

    Exhibit “L”

     

    
      
         


      

      
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