Exhibit 10.23
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (“Amendment”) is made as of June 3, 2011 by APARTMENT LODGE 17A LLC, a Colorado limited liability company (“Seller”), and FF REALTY LLC, a Delaware limited liability company (“Purchaser”).
RECITALS
A. Seller and Purchaser previously entered into that certain Purchase and Sale Contract dated as of May 23, 2011 (“Original Agreement”) pursuant to which Seller agreed to sell to Purchaser and Purchaser agreed to purchase from Seller certain real property known as Hampden Heights Apartments located in the Denver, Colorado more particularly described in the Original Agreement (the “Property”).
B. The Original Agreement contemplates that the Purchaser will assume the Assumed Loan Documents as more particularly provided in the Original Agreement.
C. Seller and Purchaser desire to amend the Original Agreement to provide that Purchaser shall have the option of either assuming the Assumed Loan Documents or obtaining a new loan to purchase the Property as more particularly set forth herein.
D. The Original Agreement, as amended by this Amendment, shall hereinafter be collectively referred to as the “Agreement.” Capitalized terms contained in this Amendment which are not defined shall have the meanings ascribed to them in the Original Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. Assumed Encumbrances or New Loan. In addition to the opportunity under Section 4.5 of the Original Agreement for Purchaser to process and obtain the Loan Assumption and Release, Purchaser may also, in the alternative, seek to obtain a new loan to finance the acquisition of the Property (the “New Loan”). If Purchaser elects (as determined under this Amendment) to purchase the Property using the New Loan, in addition to Purchaser’s other obligations under the Original Agreement (as modified by this Amendment), Purchaser shall be obligated to pay at Closing in immediately available funds (i) the Purchase Price, plus (ii) all fees and costs in connection with the payoff of the Loan, including payment of any prepayment fees, but specifically excluding the amounts payable by Seller pursuant to Section 5.4.7 of the Original Agreement. On or before the Loan Assumption Application Submittal Deadline, Purchaser shall (a) submit the Loan Assumption Application and process the Loan Assumption Application as provided in Section 4.5 of the Original Agreement and/or (b) submit an application for a New Loan and, thereafter, use its commercially reasonably efforts to comply with all of the new lender’s underwriting requirements for obtaining the New Loan. Purchaser shall provide Seller with a copy of the application for a New Loan within the same time periods required under the Original Agreement for Purchaser to provide Seller with a copy of the Loan Assumption Application. To the extent Purchaser fails to submit the Loan Assumption Application on or before the Loan Assumption Application Submittal Deadline, Purchaser shall be deemed to have irrevocably elected not to assume the Assumed Loan Documents, in which event all provisions of this Amendment and the Original Agreement (as modified by this Amendment) concerning the Loan Assumption and Release shall be of no further force or effect. To the extent Purchaser fails to submit an application for a New Loan with a reputable lender on or before the Loan Assumption Application Submittal Deadline, Purchaser shall be deemed to have irrevocably elected not to apply for a New Loan, in which event all provisions of this Amendment and the Original Agreement (as modified by this Amendment) relating to the New Loan shall be of no further force or effect. If Purchaser fails to submit either the Loan Assumption Application or an application for a New Loan on or before the Loan Assumption Application Submittal Deadline, Seller may by written notice to Purchaser terminate the Original Agreement (as modified by this Amendment).
3. Closing Date. The first sentence of Section 5.1 of the Original Agreement is deleted in its entirety and replaced with the following: “The Closing shall occur on the date that is fifteen (15) days after the earlier to occur of (i) the New Loan Deadline, if Purchaser has elected or be deemed to have elected to close the purchase using the New Loan, and (ii) the expiration of the Loan Approval Period, if Purchaser has elected to close the purchase using the Loan Assumption and Release (the “Closing Date”); provided, that either Purchaser or Seller by written notice delivered to the other may extend the Closing Date for up to fifteen (15) days (as specified in such notice) if Purchaser or Seller reasonably determines that the Lender shall not be in a position to consummate the Loan Assumption and Release or the lender for the New Loan shall not be in a position to consummate the New Loan, as applicable, as of the originally scheduled Closing Date. In addition, Seller shall have the right upon delivery of written notice to Purchaser to extend the Closing Date to the last Business Day of the month in which the Closing Date is otherwise scheduled to occur.”
5. Purchaser’s Conditions to Closing. Section 8.1.5 of the Original Agreement is deleted in its entirety and replaced with the following: “Lender shall have approved the Loan Assumption and Release, if Purchaser has elected to purchase the Property using the Loan Assumption and Release.”
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.
“PURCHASER”
FF REALTY LLC,
a Delaware limited liability company
By: /s/Jon A. MacDonald
Name: Jon A. MacDonald
Its: General Counsel
“SELLER”
APARTMENT LODGE 17A LLC,
a Colorado limited liability company
By: FOX PARTNERS,
a California general partnership,
its manager
By: FOX CAPITAL MANAGEMENT
CORPORATION,
a California corporation,
its managing general partner
By: /s/Trent A. Johnson
Name: Trent A. Johnson
Its: Vice President