Exhibit
10.28


 


Gallery
at NoHo Commons


 


AMENDMENT TO AGREEMENT OF SALE


 


THIS AMENDMENT TO AGREEMENT (“Amendment”) is entered
into as of September 17, 2009 (the “Effective Date”) by and between  and BEHRINGER HARVARD NOHO, LLC, a Delaware limited
liability company (“Purchaser”)
and SF NO HO LLC, a
California limited liability company (“Seller”).


 


RECITALS


 


WHEREAS,
Seller and Behringer Harvard Multifamily OP I LP entered into an Agreement of
Sale dated August 12, 2009 (“Agreement”) and subsequent thereto Behringer
Harvard Multifamily OP I LP assigned its right, title and interest thereunder
to Purchaser pursuant to an Assignment of Agreement of Sale made effective as
of August 19, 2009.


 


WHEREAS,
as part of the transaction contemplated by the Agreement, Purchaser, Seller and
the CRA entered into a Subarea “A” Partial Assignment of Owner Participation
Agreement and Consent to Assignment (the “Partial Assignment”), effective as of
the Closing Date.


 


WHEREAS,
the CRA and/or The U.S. Department of Housing and Urban Development (“HUD”) are
currently conducting one or more audits of the Property (collectively, the “CRA/LA Audit”).


 


WHEREAS,
as part of the Partial Assignment, CRA requires that Seller and Purchaser agree
to cure any findings of violations pursuant to the CRA/LA Audit.


 


WHEREAS,
Seller and Purchaser desire to amend the terms of the Agreement pursuant to the
terms set forth in this Amendment.


 


i

















 


NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants,
terms, and agreements set forth in this Amendment, and other consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


1.             Capitalized terms used
herein and not otherwise defined or described herein shall have the meanings
ascribed to them in the Agreement.


 


2.             As
used in Paragraph 18(d) of the Agreement, as amended, the term “Seller CRA
Audit Liability” means all costs, liabilities, expenses, fees (including
reasonable attorneys fees, court costs and costs of investigation and appeal), damages and all other amounts incurred by Purchaser as a result of
claims, loss, damages or actions by CRA and/or HUD or against Purchaser arising out of the
CRA/LA Audit for matters that occurred during Seller’s period of ownership of
the Property including, without limitation, any claim or action against
Purchaser for monitoring or compliance issues, excluding any costs,
liabilities, expenses, fees (including reasonable attorneys fees, court costs and costs of investigation
and appeal), damages and amounts claimed or
asserted by CRA and/or HUD arising out of the CRA/LA Audit pertaining to the
physical condition of the Property, including Hazardous Materials and Hazardous
Substances.


 


3.             As
used in Paragraph 18(d) of the Agreement, as amended, the term “Seller’s
Partial Assignment Indemnity Liability” means any obligation of Seller to
indemnify Purchaser pursuant to Section 6.1 of the Partial Assignment;
provided, that Purchaser agrees that Seller’s Partial Assignment Indemnity
Liability and its indemnity obligations under Section 6.1 of the Partial
Assignment shall not include any matters pertaining to the physical condition
of the Property, including Hazardous Materials and Hazardous Substances.


 

















 


4.             As
used in this Amendment, the term “Purchaser CRA Audit Liability” means all
costs, liabilities, expenses, fees (including reasonable attorneys fees, court costs and costs of investigation
and appeal), damages and all other amounts
incurred by Seller as a result of claims, loss, damages or actions by CRA and/or
HUD against Seller arising out of the CRA/LA Audit for matters that occur
during Purchaser’s period of ownership of the Property after Closing including,
without limitation, any claim or action against Seller for monitoring or
compliance issues, excluding any Seller CRA Audit Liability.


 


5.             Paragraph
18(d) of the Agreement is amended and restated in its entirety as follows:


 


Purchaser’s
right to make a claim against Seller for a breach of an indemnity (except for
Seller’s indemnity for a brokerage commission), representation, warranty or
covenant under this Agreement or the Exhibits attached hereto or for  any Seller CRA/LA Audit Liability or for any
Seller’s Partial Assignment Indemnity Liability (collectively or individually,
a “Claim”) shall expire on the one year anniversary of the Closing and delivery
of the Deed (“Survival Date”).  As to any
Claim, Purchaser must: (i) notify Seller of the existence of the Claim in
question (“Claim Notice”); and (ii) if not otherwise resolved, then
Purchaser may, at its option, institute legal proceedings in a court of
competent jurisdiction within one (1) year after the Survival Date (“Judicial
Proceedings Date”).  Any Claim for which
a Claim Notice is not delivered by Purchaser to Seller on or prior to the
Survival Date or for which legal proceedings are not instituted on or prior to
the Judicial Proceedings Date shall be deemed to have been waived by Purchaser
and rendered null and void and of no further force or effect.  Seller’s total liability in the aggregate for
all Claims shall not exceed One Million ($1,000,000.00) Dollars.  Seller shall not be liable for any Claim(s) until
the aggregate of all Claims exceeds Twenty Thousand ($20,000.00) Dollars.  The
terms and limitations placed upon Seller in this Paragraph 18(d) shall
apply notwithstanding anything to the contrary in this Agreement.  Fairfield California Housing Fund LLC (“FCHF”)
irrevocably and absolutely guarantees to Purchaser the timely payment in
full for all amounts due and payable to Purchaser in connection with a Claim
(subject to the aggregate limitation on liability of $1,000,000 set forth
above).  FCHF represents and warrants that FCHF, as an affiliate of Seller, derives substantial benefit in
consideration for the foregoing guaranty.


 


6.             Purchaser agrees to indemnify, defend and hold harmless each Seller
Indemnitee from any and all Purchaser
CRA Audit Liability. Seller’s
right to make a claim (“Seller CRA 


 

















 


Claim”)
against Purchaser for any Purchaser CRA Audit Liability shall expire on the
Survival Date (as defined in the Agreement, as amended).  As to any Seller CRA Claim, Seller must: (i) notify
Purchaser of the existence of the Seller CRA Claim in question (“Seller CRA
Claim Notice”); and (ii) if not otherwise resolved, then Seller may, at
its option, institute legal proceedings in a court of competent jurisdiction
prior to the expiration of the Judicial Proceedings Date (as defined in the
Agreement, as amended).  Any Seller CRA
Claim for which a Seller CRA Claim Notice is not delivered by Seller to
Purchaser on or prior to the Survival Date or for which legal proceedings are
not instituted on or prior to the Judicial Proceedings Date, shall be deemed to
have been waived by Seller and rendered null and void and of no further force
or effect.  Purchaser’s total liability
in the aggregate for all Seller CRA Claims shall not exceed One Million
($1,000,000.00) Dollars. Purchaser
shall not be liable for any Seller CRA Claim(s) until the aggregate of all
Seller CRA Claims exceeds Twenty Thousand ($20,000.00) Dollars.  The terms and limitations placed upon Seller
in this Paragraph shall apply notwithstanding anything to the contrary in this
Agreement.


 


7.             All terms of the Agreement
remain in full force and effect except as modified hereby.


 


8.             This Amendment may be
executed in electronic format and in one or more counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument.


 


[signature page to
follow]


 

















 


IN WITNESS WHEREOF, the
parties hereto have caused this instrument to be duly executed the day and year
first above written.


 


	
   

  	
   

  	
  PURCHASER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BEHRINGER HARVARD NOHO, LLC, 

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Robert T. Poynter

  
	
   

  	
   

  	
  Name:

  	
  Robert T. Poynter

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SELLER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SF
  NO HO LLC,

  
	
   

  	
   

  	
  a
  California limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FF
  CALIFORNIA HOUSING FUND LLC,

  
	
   

  	
   

  	
   

  	
  a
  Delaware limited liability company,

  
	
   

  	
   

  	
   

  	
  its
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  FF
  PROPERTIES, INC., a Delaware

  
	
   

  	
   

  	
   

  	
   

  	
  corporation,
  its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Gino A. Barra

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Gino A. Barra

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Vice President

  



 

















 


Fairfield California Housing Fund LLC, a Delaware
limited liability company, joins in the execution of this
Amendment solely to acknowledge and consent to its obligation to guaranty of a
Claim as set forth in Paragraph 18(d) of the Agreement, as amended by this
Amendment, and that it is hereby bound to the terms and conditions of Paragraph
18(d) of the Agreement, as amended by this Amendment for that
purpose.  Fairfield California Housing Fund LLC acknowledges and agrees that
it is the owner of a direct or indirect interest in Seller and will materially
benefit from the sale of the Property.


 


 


	
   

  	
   

  	
  Fairfield California Housing Fund LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  FF California Housing Fund LLC,

  
	
   

  	
   

  	
   

  	
  a Delaware limited liability company,

  
	
   

  	
   

  	
   

  	
  Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  FF Properties, Inc.,

  
	
   

  	
   

  	
   

  	
   

  	
  a Delaware corporation,

  
	
   

  	
   

  	
   

  	
   

  	
  its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Gino A. Barra

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Gino A. Barra

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title: Vice
  President