Exhibit 10.22


 





FIRST
amendment to


amended
and restated


Limited
Liability Company Agreement 


FOR


BR-NPT
SPRINGING ENTITY, LLC,


A
DELAWARE LIMITED LIABILITY COMPANY


 


This
FIRST Amendment to amended and restated Limited Liability Company Agreement (this “First Amendment”) is made
as of the 24th day of December, 2013, by BR-NORTH PARK TOWERS, LLC, as managing member (the “Manager”), for itself
and on behalf of the members set forth on Schedule A hereto (the “Members”).


 


WHEREAS, an Amended
and Restated Limited Liability Company Agreement dated April 30, 2013 (the “LLC Agreement”) for BR-NPT Springing Entity,
LLC (the “Company”) was previously entered into by and among the Members and the Manager.


 


WHEREAS, the Company
previously borrowed that certain Mortgage Loan from the Mortgage Lender in the original principal amount of $10,000,000.00.


 


WHEREAS, in connection
with that certain refinancing of the Mortgage Loan being entered into by the Company with the Lender, the Company has agreed to
amend the LLC Agreement in order to, among other things, add additional definitions, replace certain existing special purpose provisions
that are no longer applicable with the corresponding provisions required by Lender and to otherwise permit the borrowing of the
new Loan.


 


WHEREAS, the parties
hereto wish to amend the LLC Agreement as hereinafter provided.


 


NOW, THEREFORE, the
parties hereto modify and amend the LLC Agreement, effective as of the date hereof, as follows:


 


1.            Section 1.01
of the LLC Agreement is hereby modified and amended to delete the following definitions and inserting therefor the replacement
definitions described below. Any references to such terms throughout the LLC Agreement are hereby either deleted and rendered ineffective
or modified and amended as set forth herein, as applicable, from and after the date hereof.


 


(a)          “Mortgage Loan”
is deleted and each reference thereto is replaced each such reference with “Loan”.


 


(b)           “Mortgage Lender”
is deleted and each reference thereto is replaced with “Lender”.


 


(c)          “Mortgage Loan Documents”
is deleted and each reference thereto is replaced with “Loan Documents”.


 




    	 



    	 



    

 


(d)          “Mortgage Debt”
is deleted and each reference thereto is replaced with “Debt”.


 


(e)          “Guarantor(s)”
is deleted and each reference thereto is replaced with “R. Ramin Kamfar”


 


(f)          “Guaranty(ees)”
is deleted and each reference thereto is replaced with and replace each such reference with the Guaranty of Recourse Obligations
and the Environmental Indemnity Agreement that constitute part of the Loan Documents.


 


(g)          “Mortgage Loan Default”
is deleted and each reference thereto is replaced with Loan Default”.


 


(h)          “Affiliate”
is deleted and replaced with the following:


 


“Affiliate”
means, with respect to any specified Person any other Person owning beneficially, directly or indirectly, any ownership interest
in such specified Person or directly or indirectly Controlling or Controlled by or under direct or indirect common Control with
such specified Person.


 


(i)          “Control is deleted
and replaced with the following:


 


“Control”
(including the correlative terms “controlling”, “controlled by” and “under common control with”)
means the possession, directly or indirectly, of the power to direct or cause the direction of management and policies of the business
and affairs of the entity in question by reason of the ownership of beneficial interests, by contract or otherwise. Without limiting
the generality of the foregoing, a Person shall be deemed to Control another Person in which it owns, directly or indirectly, ten
percent (10%) or more of the ownership interests.”


 


(j)          “Material Action”
is deleted and replaced with the following:


 


“Material
Action” means (a) to file any bankruptcy, insolvency, or reorganization case or proceeding, (b) to institute proceedings
to have the Company be adjudicated bankrupt or insolvent, (c) to institute proceedings under any applicable Creditors’ Rights
Laws to have the Company be adjudicated bankrupt or insolvent, (d) to seek any relief under any law relating to relief from debts
or the protection of debtors generally, (e) to consent to the filing or institution of bankruptcy, reorganization or insolvency
proceedings against the Company, (f) to file a petition seeking, or consent to, bankruptcy, insolvency, reorganization or relief
with respect to the Company under any applicable federal or state law relating to bankruptcy or insolvency, (g) to seek or consent
to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian, or any similar official of or for the
Company or a substantial part of its property, (h) to make any assignment for the benefit of creditors of the Company, (i) to admit
in writing the Company’s inability to pay its debts generally as they become due, (j) to declare or effectuate a moratorium
on the payment of any Obligation, or (k) to take action in furtherance of any of the foregoing.


 


(k)          “Member” is
deleted and replaced with the following:




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“Member”
means any Person that holds a limited liability company interest in the Company and is admitted as a member of the Company and
includes any Person admitted as an additional member of the Company or a substitute member of the Company pursuant to the provisions
of this Agreement and the Delaware Act, each in its capacity as a member of the Company.


 


(l)          “Person” is
deleted and replaced with the following:


 


“Person”
means an individual, corporation, partnership, association, trust, limited liability company, joint venture or any other entity
or organization, whether or not a legal entity, including a government or political subdivision or an agency, unit or instrumentality
thereof.


 


2.            Section 1.01
of the LLC Agreement is further modified and amended by inserting the following new definitions:


 


(a)          “Lender’ shall
mean Arbor Commercial Mortgage, LLC, a New York limited liability company or any of its affiliates together with their successors
and assigns, the lender under the Loan; or the lender under any replacement loan, its successors and assigns.


 


(b)          “Loan” shall
mean that certain loan in the amount of $11,500,000.00 made by Lender to the Company in accordance with the terms, conditions and
provisions of the Loan Documents.


 


(c)          “Loan Agreement
means that certain Loan Agreement by and between the Company and Lender.


 


(d)          “Loan Documents”
has the meaning set forth in the Loan Agreement.


 


(e)          “Debt” has
the meaning set forth in the Loan Agreement.


 


(f)          “Rating
Agency” has the meaning assigned to that term in the Loan Documents, or if no such defined term exists, means a nationally
recognized rating agency that is rating or that has rated the Loan or any pool of loans of which the Loan forms a part or any securities
issued in connection with a securitization of the Loan or such pool of loans.


 


(g)          “Rating
Agency Confirmation” means (i) with respect to any action taken at any time before the Loan has been sold or assigned
to a securitization trust, that the Lender has consented to such action, and (ii) with respect to any action taken at any time
after the loan evidenced and secured by the Loan Documents has been sold or assigned to a securitization trust, that each Rating
Agency shall have notified the Company in writing that such action will not result in a reduction, withdrawal, downgrade or qualification
of the then current rating by such Rating Agency of the Loan or any pool of loans of which the Loan forms a part, or of any of
securities issued by such securitization trust.


 




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(h)          “Obligations”
shall have the meaning set forth in the Loan Agreement.


 


(i)          “Permitted
Indebtedness” shall have the meaning set forth in the Loan Agreement.


 


(j)          “Indebtedness”
shall have the meaning set forth in the Loan Agreement.


 


(l)           “Securitization”
shall have the meaning set forth in the Loan Agreement,


 


3.            Sections 7.05
(b) and (c) of the LLC Agreement are modified and amended by deleting each such Section in its entirety and inserting therefor
the following:


 


(b)          Notwithstanding
anything to the contrary in this Agreement or in any other document governing the formation, management or operation of the Company,
neither the Members or Manager nor the Company shall amend, alter or change any of Article 1, Section 2.03, Section
2.04, Section 2.08, Section 7.01(a), (e) and (f), Section 7.05, Section 9.01, Section
9.02, Section 9.03, Article 10, Section 11.01, Section 12.01, Section 12.02, Section
12.03, Section 12.04, Section 13.02, and Section 13.06 (collectively, the “Special Purpose Provisions”),
without the prior written consent of the Lender and upon receiving any required Rating Agency Confirmation. Subject to this Section
7.05 and Section 7.02, the Manager reserves the right to amend, alter, change or repeal any provisions contained in
this Agreement in accordance with Section 13.02. In the event of any conflict between any of the Special Purpose Provisions
and any other provision of this or any other document governing the formation, management or operation of the Company, the Special
Purpose Provisions shall control.


 


(c)          Notwithstanding
any other provision of this Agreement and any provision of law that otherwise so empowers the Company, any Member, the Manager,
any officer or any other Person, neither the Company nor the Members nor the Manager nor any other Person shall be authorized or
empowered, nor shall they permit the Company to, and the Company shall not, without the prior unanimous written consent of the
Manager and the Members, take any Material Action. Notwithstanding anything to the contrary in this Agreement or in any other document
governing the formation, management or operation of the Company, prior to taking any Material Action, the Members and the Manager
shall, to the fullest extent permitted by law, including Section 18-1101(c) of the Delaware Act, take into account the interest
of the Company’s creditors, as well as those of the Company.


 


4.            Section 9.01
of the LLC Agreement is modified and amended by deleting it in its entirety and inserting therefor the following:


 


“9.01      Special
Purpose Entity. The Company hereby represents and warrants to, and covenants with, Lender that since the date of its formation
and at all times on and after the date hereof and until such time as the Obligations shall be paid and performed in full:


 




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		(a)	The Company (i) has been, is, and will be organized solely for the purpose of acquiring, developing,
owning, holding, selling, leasing, transferring, exchanging, managing and operating the Property, entering into the Loan Agreement
with the Lender, refinancing the Property in connection with a permitted repayment of the Loan, and transacting lawful business
that is incident, necessary and appropriate to accomplish the foregoing, and (ii) has not owned, does not own, and will not
own any asset or property other than (A) the Property, and (B) incidental personal property necessary for the ownership
or operation of the Property.



 


		(b)	The Company has not engaged and will not engage in any business other than the ownership, management
and operation of the Property and the Company will conduct and operate its business as presently conducted and operated.



 


		(c)	The Company has not and will not enter into any contract or agreement with any Affiliate of the
Company except upon terms and conditions that are intrinsically fair, commercially reasonable, and no less favorable to it than
would be available on an arms-length basis with third parties other than any such party.



 


		(d)	The Company has not incurred any Indebtedness which remains outstanding and will not incur any
Indebtedness other than Permitted Indebtedness. No Indebtedness other than the Debt may be secured (senior, subordinate or pari
passu) by the Property.



 


		(e)	The Company has not made and will not make any loans or advances to any third party (including
any Affiliate or constituent party), and has not and shall not acquire obligations or securities of its Affiliates.



 


		(f)	The Company has been, is, and intends to remain solvent and the Company has paid and intends to
pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets; provided that
the foregoing shall not require any direct or indirect member, partner, shareholder or other equity owner of the Company to make
any additional capital contributions to the Company.



 


		(g)	The Company has done or caused to be done, and will do, all things necessary to observe organizational
formalities and preserve its existence, and the Company has not, will not, nor will the Company permit any SPC Party (as hereinafter
defined) to, (i) terminate or fail to comply with the provisions of its organizational documents, or (ii) unless (1)(A) Lender
has consented and (B) following a Securitization of the Loan, the applicable Rating Agencies have issued a Rating Agency Confirmation
in connection therewith, or (2) solely in connection with and in order to reflect the occurrence of Permitted Transfer (as defined
in the Loan Agreement) made pursuant to and in accordance with the terms of this Agreement, amend, modify or otherwise change its
limited liability company agreement or other organizational documents.



 




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		(h)	The Company has maintained and will maintain all of its books, records, financial statements and
bank accounts separate from those of its Affiliates and any other Person. The Company’s assets will not be listed as assets
on the financial statement of any other Person, provided, however, that the Company’s assets may be included in a consolidated
financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial
statements to indicate the separateness of the Company and such Affiliates and to indicate that the Company’s assets and
credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such
assets shall be listed on the Company’s own separate balance sheet. The Company will file its own tax returns (to the extent
the Company is required to file any such tax returns) and will not file a consolidated federal income tax return with any other
Person. The Company has maintained and shall maintain its books, records, resolutions and agreements in accordance with the Loan
Agreement.



 


		(i)	The Company has been, will be, and at all times has held and will hold itself out to the public
as, a legal entity separate and distinct from any other entity (including any Affiliate of the Company or any constituent party
of the Company), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in
its own name, shall not identify itself or any of its Affiliates as a division or department or part of the other and shall maintain
and utilize separate stationery, invoices and checks bearing its own name.



 


		(j)	The Company has maintained and intends to maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided that
the foregoing shall not require any direct or indirect member of the Company to make any additional capital contributions to the
Company.



 


		(k)	Neither the Company nor any constituent party of the Company has sought or will seek or effect
the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of the Company.



 


		(l)	The Company has not and will not commingle the funds and other assets of the Company with those
of any Affiliate or constituent party or any other Person, and has held and will hold all of its assets in its own name.



 


		(m)	The Company has and will maintain its assets in such a manner that it will not be costly or difficult
to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party or any other Person.



 




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		(n)	The Company has not and will not assume or guarantee or become obligated for the debts of any other
Person and does not and will not hold itself out to be responsible for or have its credit available to satisfy the debts or obligations
of any other Person.



 


		(o)	The Company’s manager (an “SPC Party”) shall be a Delaware limited
liability company or a corporation formed under the laws of any jurisdiction of the United States whose sole asset is its interest
in the Company and such SPC Party (i) will cause the Company to be a Special Purpose Bankruptcy Remote Entity; (ii) will
at all times comply with each of the representations, warranties and covenants contained in this Section 9.01 (other than clauses
(a), (b), (d) and (y)) as if such representation, warranty or covenant was made directly by such SPC Party; (iii) will
not engage in any business or activity other than managing and owning an interest in the Company; (iv) will not acquire or
own any assets other than its membership interest in the Company; and (v) will not incur any debt, secured or unsecured, direct
or contingent (including guaranteeing any obligation) other than unsecured trade payables incurred in the ordinary course of business
related to the ownership of an interest in the Company that (A) do not exceed at any one time $25,000.00, and (B) are
paid within sixty (60) days after the date incurred. Upon the withdrawal or the disassociation of an SPC Party from the Company,
the Company shall immediately appoint a new SPC Party whose articles or certificate of formation or incorporation are substantially
similar to those of such SPC Party.



 


		(p)	Intentionally omitted.



 


		(q)	The organizational documents of the Company and each SPC Party shall also provide an express acknowledgment
that Lender is an intended third-party beneficiary of the “special purpose” provisions of such organizational documents.



 


		(r)	Intentionally omitted.



 


		(s)	Notwithstanding anything herein to the contrary, the SPC Party may be a Delaware single-member
limited liability company provided that:



 




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		i.	the organizational documents of such SPC Party shall provide that, as long as any portion of the
Obligations remains outstanding, upon the occurrence of any event that causes the sole member of such SPC Party (“Sole
Member”) to cease to be a member of such SPC Party (other than (i) upon an assignment by Sole Member of all
of its limited liability company interest in SPC Party and the admission of the transferee, if permitted pursuant to the organizational
documents of SPC Party and the Loan Documents, or (ii) the resignation of Sole Member and the admission of an additional member
of SPC Party, if permitted pursuant to the organizational documents of SPC Party and the Loan Documents), each of the persons acting
as a springing member of SPC Party shall, without any action of any Person and simultaneously with Sole Member ceasing to be a
member of SPC Party, automatically be admitted as members of SPC Party (in each case, individually, a “Special Member”
and collectively, the “Special Members”) and shall preserve and continue the existence of SPC Party without
dissolution. The organizational documents of SPC Party shall further provide that for so long as any portion of the Obligations
is outstanding, no Special Member may resign or transfer its rights as Special Member unless a successor Special Member has been
admitted to SPC Party as a Special Member;



 


		ii.	the organizational documents of SPC Party shall provide that, as long as any portion of the Obligations
remains outstanding, except as expressly permitted pursuant to the terms of the Loan Agreement, (i) Sole Member may not resign,
and (ii) no additional member shall be admitted to SPC Party; and



 


		iii.	the organizational documents of SPC Party shall provide that, as long as any portion of the Obligations
remains outstanding: (i) SPC Party shall be dissolved, and its affairs shall be wound up, only upon the first to occur of
the following: (A) the termination of the legal existence of the last remaining member of SPC Party or the occurrence of any
other event which terminates the continued membership of the last remaining member of SPC Party in SPC Party unless the business
of SPC Party is continued in a manner permitted by its operating agreement or the Delaware Act, or (B) the entry of a decree
of judicial dissolution under Section 18-802 of the Delaware Act; (ii) upon the occurrence of any event that causes the
last remaining member of SPC Party to cease to be a member of SPC Party or that causes Sole Member to cease to be a member of SPC
Party (other than (A) upon an assignment by Sole Member of all of its limited liability company interest in SPC Party and
the admission of the transferee, if permitted pursuant to the organizational documents of SPC Party and the Loan Documents, or
(B) the resignation of Sole Member and the admission of an additional member of SPC Party, if permitted pursuant to the organizational
documents of SPC Party and the Loan Documents), to the fullest extent permitted by law, the personal representative of such last
remaining member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the
continued membership of such member in SPC Party, agree in writing (I) to continue the existence of SPC Party, and (II) to the
admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of SPC Party, effective
as of the occurrence of the event that terminated the continued membership of such member in SPC Party; (iii) the bankruptcy
of Sole Member or a Special Member shall not cause such Sole Member or Special Member, respectively, to cease to be a member of
SPC Party and upon the occurrence of such an event, the business of SPC Party shall continue without dissolution; (iv) in
the event of the dissolution of SPC Party, SPC Party shall conduct only such activities as are necessary to wind up its affairs
(including the sale of the assets of SPC Party in an orderly manner), and the assets of SPC Party shall be applied in the manner,
and in the order of priority, set forth in Section 18-804 of the Delaware Act; and (v) to the fullest extent permitted
by law, each of Sole Member and the Special Members shall irrevocably waive any right or power that they might have to cause SPC
Party or any of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of SPC
Party, to compel any sale of all or any portion of the assets of SPC Party pursuant to any applicable law or to file a complaint
or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of SPC Party.



 




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		(t)	The Company hereby covenants and agrees that it will comply with or cause the compliance with,
(i) all of the representations, warranties and covenants in this Section 9.01, and (ii) all of the organizational documents
of the Company and any SPC Party.



 


		(u)	The Company has not permitted and will not permit any Affiliate or constituent party independent
access to its bank accounts, other than Manager, in its capacity as Manager of the Company and Bluerock Property Management, LLC,
in its capacity as property manager for the Property.



 


		(v)	The Company has paid and intends to pay its own liabilities and expenses, including the salaries
of its own employees (if any) from its own funds, and has maintained and shall maintain a sufficient number of employees (if any)
in light of its contemplated business operations; provided that the foregoing shall not require any direct or indirect member of
the Company to make any additional capital contributions to the Company.



 


		(w)	The Company has compensated and shall compensate each of its consultants and agents from its funds
for services provided to it and pay from its own assets all obligations of any kind incurred; provided that the foregoing shall
not require any direct or indirect member of the Company to make any additional capital contributions to the Company.



 


		(x)	The Company has allocated and will allocate fairly and reasonably any overhead expenses that are
shared with any Affiliate, including shared office space.



 




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		(y)	Except in connection with the Loan, the Company has not pledged and will not pledge its assets
for the benefit of any other Person that will remain outstanding after the Closing Date.



 


		(z)	The Company has and will have no obligation to indemnify its officers, directors, members or partners,
as the case may be, or has such an obligation that is fully subordinated to the Debt and will not constitute a claim against it
if cash flow in excess of the amount required to pay the Debt is insufficient to pay such obligation.



 


		(aa)	The Company will not: (A) dissolve, merge, liquidate, consolidate; (B) sell, transfer,
dispose, or encumber (except with respect to the Loan Documents) all or substantially all of its assets or acquire all or substantially
all of the assets of any Person; or (C) engage in any other business activity, or amend its organizational documents with
respect to the matters set forth on this Section 9.01 without the consent of the Lender.



 


		(bb)	The Company has not, does not, and will not have any of its obligations guaranteed by any Affiliate
(other than from the Guarantor with respect to the Loan) that will remain outstanding after the Closing Date.



 


Failure of the
Company or the Members or Manager on behalf of the Company to comply with the foregoing covenants or any other covenants contained
in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Members
or Manager.”


 


5.            Section 9 of
the LLC Agreement is further modified and amended by inserting the following new Sections 9.02 and 9.03:


I.            9.02         Waiver
of Partition; Nature of Interest. To the fullest extent permitted by law, each of the Members and the Manager hereby irrevocably
waives any right or power that such Person might have to cause the Company or any of its assets to be partitioned, to cause the
appointment of a receiver for all or any portion of the assets of the Company, to compel any sale of all or any portion of the
assets of the Company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity
to cause the dissolution, liquidation, winding up or termination of the Company. The Members shall not have any interest in any
specific assets of the Company, and the Members shall not have the status of a creditor with respect to any distribution pursuant
to this Agreement. The interest of the Members in the Company is personal property.


 


9.03        Third-Party Rights.
The Lender, its successors and assigns, are intended third-party beneficiaries of this Agreement and may enforce the Special Purpose
Provisions.


 


6.            Section 11.01
(e) of the LLC Agreement is deleted in its entirety and replaced with the following:


 




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“(e)          Notwithstanding
the foregoing provisions, any indemnification set forth herein shall be fully subordinate to the Loan and, to the fullest extent
permitted by law, shall; not constitute a claim against the Company in the event that the Company’s cash flow is insufficient
to pay its Obligations.”


 


7.            Section 12.02(a)
of the LLC Agreement is modified and amended by adding “Subject to the terms of Section 9.01, “ to the beginning thereof.


 


8.            Section 12.02
(c) of the LLC Agreement is modified and amended by adding the following to the end thereof:


 


“Except as otherwise required
by law, notwithstanding any other provision of this Agreement, the dissolution or death of a Member shall not, by itself, cause
the Company to be dissolved or its affairs to be wound up and upon the occurrence of such event the Company shall continue without
dissolution.”


 


9.            Section 12.02
of the LLC Agreement is further modified and amended by adding the following new subsection (d):


 


“(d)        Notwithstanding
any other provision of this Agreement, each of the Members waive any right it might have to agree tin writing to dissolve the Company
upon the Bankruptcy of a Member or the occurrence of an event that causes a Member to cease to be a Member of the Company.”


 


10.          Section 13.02
(a) of the LLC Agreement is modified by adding “Subject to Section 7.05(b),” to the beginning thereof.


 


11.          This First Amendment
is intended to be effective from and after the date set forth above.


 


[SIGNATURES TO FOLLOW]


 




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IN WITNESS WHEREOF the undersigned have
set their hands to this First Amendment as of the date first set forth above.


 


	MANAGER:	BLUEROCK REAL ESTATE, L.L.C.,
	 	a Delaware limited liability company
	 	 
	 	By:	/s/ Jordan Ruddy
	 	Name:	Jordan Ruddy
	 	Title:	Authorized Signatory


 




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SCHEDULE A


 


MEMBERS