Exhibit 10.12


 


FIRST AMENDMENT TO


SALE, PURCHASE AND ESCROW AGREEMENT


 


                THIS FIRST AMENDMENT TO SALE,
PURCHASE AND ESCROW AGREEMENT (the “Amendment”) is made and entered into
effective as of February 20, 2009, by and between Verandah Owner
Limited Partnership, a Delaware limited partnership (“Seller”), and
Behringer Harvard Multifamily OP I LP, a Delaware limited partnership (“Purchaser”)
with reference to the following recitals of fact:


 


R  E  C  I  T  A  L
S:


 


A.            Harvard
Property Trust, LLC (“Original Purchaser”) and Seller were parties to
that certain Sale, Purchase and Escrow Agreement, with an Effective Date of January 26,
2009 (the “Original Agreement’), pursuant to which Original Purchaser agreed to
purchase and Seller agreed to sell, inter alia, that certain real property
located in Harris County, Texas, commonly known as The Verandah at Meyerland
Apartments.


 


B.            Original
Purchaser did assign all of its right, title and interest under the Original
Agreement pursuant to Assignment and Assumption of Sale, Purchase and Escrow
Agreement dated January 29, 2009.


 


C.            Purchaser
and Seller now desire to modify the Agreement in accordance with the terms and
conditions set forth in this Amendment. 
For purposes hereof, the Original Agreement and this Amendment are collectively
referred to as the “Agreement.”


 


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


 


1.             Original
Agreement.  Purchaser and Seller
acknowledge that the Original Agreement is in full force and effect, except as
modified by this Amendment.  All
capitalized terms not otherwise defined herein shall have the meaning set forth
in the Original Agreement.  In the event
of any inconsistency between the terms and conditions set forth in the Original
Agreement and the terms and conditions set forth in this Agreement, the terms
and conditions in this Amendment shall control.


 


2.             Purchase
Price.  The Purchase Price as defined
in Section 2.1 of the Original Agreement is hereby reduced by $600,000.00
making the amended Purchase Price Twenty-Eight Million Six Hundred Thousand and
00/100 Dollars ($28,600,000.00).


 


3.             Deposit.  Upon full execution of this Amendment,
Purchaser agrees that except as set forth in the last sentence hereof, the
$200,000 Deposit under Section 2.1.1 of the Agreement shall become
non-refundable notwithstanding that Purchaser shall still retain the right to
terminate the Agreement under Section 5.7 as modified by paragraph 4
below.  The completion prior to Closing
of the repairs from water damage as described on the attached letter from Frank
Crystal & Company to Units 122 and 222 shall also be a condition
precedent for the $200,000 Deposit and any Additional Funds deposited under Section 2.1.2
of the Agreement to become non-refundable.


 


4.             Inspection
Period.  The Inspection Period as
defined in Section 5.7 of the Original Agreement is hereby extended such
that the Inspection Period shall expire Tuesday, at 5 P.M. Central 


 


1

















 


Standard
Time, on February 24, 2009.  In
addition, any use in the Agreement of the term “Investigation Period” shall
mean the Inspection Period, the use of such terms being one and the same.


 


5.             No
Other Modifications.  Except as
otherwise provided herein, all other terms and provisions of the Agreement
shall remain in full force and effect, unmodified by this Amendment.


 


6.             Binding
Effect.  The provisions of this
Amendment shall be binding upon and inure to the benefit of the heirs,
representatives, successors and permitted assigns of the parties hereto.


 


7.             Counterparts.  This Amendment may be executed in any number
of original counterparts.  Any such
counterpart, when executed, shall constitute an original of this Amendment, and
all such counterparts together shall constitute one and the same
Amendment.  For purposes of this
Amendment, facsimile signatures shall be deemed to be originals.


 


IN WITNESS WHEREOF, this Amendment has been duly
executed by the parties hereto as of the day and year written above.


 


	
  SELLER:

  	
  VERANDAH
  OWNER LIMITED PARTNERSHIP,

  
	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Houston Verandah Investor Limited Partnership, a

  Delaware limited partnership, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BH Verandah, L.L.C., an Iowa limited liability

  company, its general partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  BH Equities L.L.C., an Iowa limited liability 

  company, its managing member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harry Bookey

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name: Harry Bookey

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Title: Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PURCHASER:

  	
  BEHRINGER
  HARVARD MULTIFAMILY OP I LP,

  
	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHMF, Inc.

  
	
   

  	
   

  	
  a
  Delaware corporation,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Executive
  Vice President — Corporate

  
	
   

  	
   

  	
   

  	
  Development &
  Legal and Assistant Secretary

  



 


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