EX 10.9   Stanford Place - Second Amend




Exhibit 10.9


REINSTATEMENT AND SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT




THIS REINSTATEMENT AND SECOND  AMENDMENT  TO PURCHASE  AND SALE AGREEMENT  ("Amendment") is executed effective  as of January  27, 2014 ("Amendment  Effective  Date"), by and between TIAA  REALTY,  LLC, a Delaware  limited liability company  (formerly  known  as TIAA  Realty,  Inc., a Delaware  corporation)  ("Seller"), and BEHRINGER HARVARD OPPORTUNITY OP II LP, a Delaware limited partnership ("Purchaser").


RECITALS:


Whereas, Seller and Purchaser heretofore entered into that certain Purchase and Sale Agreement   dated  as  of  December   10,  2013,  as  reinstated   and  amended   by  that  certain Reinstatement  and  First Amendment  to Purchase  and Sale  Agreement  dated  as of January  7,
2014, between Seller and Purchaser (as so reinstated and amended, the "Agreement"); and


Whereas, Seller and Purchaser now desire to reinstate the Agreement and modify certain terms of the Agreement as set forth herein; and


Now, therefore, for good and valuable consideration,  the receipt and sufficiency of which are hereby acknowledged,  Purchaser and Seller hereby agree as follows:


AGREEMENTS:


1.         Recitals.     The  recitals  set  forth  above  are  true  and  correct  and  are  hereby incorporated i n their entirety.




2.     Definitions.
 
Capitalized  terms  used but otherwise  not defined  herein shall  have the meaning ascribed to such terms in the Agreement.


3.     Reinstatement.     The  Agreement  (as  amended  hereby)  is  reinstated  as  of  the
Amendment Effective Date.


4.     Due Diligence  Period.   The Due Diligence  Period  is hereby extended  until 5:00
P.M. (New York, New York time) on January 29,2014.


5.     Amendment  of Prorations  Section.   Section  11 .2(1) of the Agreement  is hereby amended and restated in its entirety as follows:


"(f)     Assessments  but only for the annual installments  for the 2013 and
2014 fiscal years."










6.     Assignment.    The second  sentence  of Section  15.7 of the Agreement  is hereby amended and restated in its entirety as follows:


"The  foregoing  notwithstanding,   provided  that  Purchaser  is  in  compliance   with  the conditions  hereinafter set forth, Purchaser shall have the right to assign this Agreement,without Seller's  consent, provided (a) the assignment is effective on or before the Closing Date,  (b)  the  assignment   is  to  one  Affiliated  Entity  (as  defined   below)  created  by Purchaser for the purpose of purchasing  the Property, (c) the assignment  is on the form attached  hereto as Exhibit 0 and   includes all of Purchaser's right, title and interest in and to the Deposit, and provides for the assumption, for the benefit of Seller as a third­ party beneficiary,  of all of Purchaser's  obligations  under this Agreement,  (d) that such assignee has assumed any and all obligations and liabilities of Purchaser under this Agreement, but, notwithstanding such assumption, Purchaser shall continue to be liable hereunder  for all obligations  occurring prior to the Closing, and (e) Purchaser  provides Seller,  at  least  seven  (7)  business  days'  prior to  Closing,  with  written  notice  of  such assignment and executed counterparts of all documents evidencing or otherwise executed in connection with such assignment."


7.         Insertion  of New  Form of  Assignment  of  Purchase  and  Sale  Agreement  as an Exhibit.     The Agreement  is hereby amended  by inserting  Exhibit "A" attached  hereto as the replacement of  Exh ibit "0" to the Agreement.


8.         Ratification.    Except  as  herein  amended,  the  Agreement  is hereby  ratified  and affirmed in its entirety by Purchaser and Seller.


9.         Counterparts;   Email  Signatures.     This  Amendment   may  be  executed   in  any number  of  counterparts,   each  of  which  shall  be  considered   an  original,   and  all  of  such counterparts  shall  constitute  one  Amendment.    To  facilitate  execution  of  this  Amendment, Purchaser  and Seller  may execute  and exchange  by e-mail  as a portable  document  format  or other electronic imaging, counterparts of the signature page, which shall be deemed original signatures for all purposes.


[Signature Page Follows]












IN WITNESS WHEREOF, this Amendment has been duly executed as  of  the
Amendment Effective Date.


PURCHASER:
BEHRINGER HARVARD
OPPORTUNITY OP II LP,
a Delaware limited partnership


By:  /s/MICHAEL O’HANLON
Name:  Michael O’ Hanlon
Title:  Chief Executive Officer and President


































[Signatures Continue on Next Page]














































S-1



















SELLER:


TIAA REALTY, LLC,
a Delaware limited liability company


By:  /s/LYNETTE M. PINEDA
Name:  Lynette M. Pineda
Title:  Assistant Secretary




















































S-2

















EXHIBIT  "A"




New Form of Assignment of Purchase  and Sale Agreement




ASSIGNMENT OF PURCHASE AND SALE AGREEMENT


THIS   ASSIGNMENT  OF  PURCHASE  AND   SALE   AGREEMENT  (this "Assignment"), is executed  as of the _th day of                     , 2014  ("Effective Date"), by and among BEHRINGER HARVARD OPPORTUNITY OP II LP, a Delaware  limited partnership ("Assignor"),  and   7979   E.   TUFTS    AVE,   LLC,   a   Delaware   limited    liability   company ("Assignee")  (Assignor and  Assignee   are  sometimes  referred   to  herein,   collectively, as  the "Parties").  All  initially  capitalized terms  used  herein  which  are  not otherwise defined  herein shall  have  the  meanings  ascribed  to them  in the  Purchase  Agreement (as such  term  is defined below).


RECITALS:


WHEREAS, Assignor   and  TIAA  Realty,  LLC,  a  Delaware limited   liability  company
("Seller") have entered  into that certain  Purchase  and Sale Agreement dated  as of December  10,
2013, as reinstated  and amended  by that certain  Reinstatement and First Amendment to Purchase and  Sale  Agreement  dated   effective   as  of  January   7,  2014   [insert reference  to  additional amendment(  ), if applicable] (collectively, the  "Purchase Agreement"), for  the  sale  of  the
property  described in the Purchase Agreement ("Propertv").


WHEREAS, the  Parties  desire  to  enter  into  this  Assignment to,  among  other  things, evidence   Assignor's  assignment of  its  right,  title  and  interest  in  the  Purchase  Agreement  to Assignee  and  to evidence Assignee's assumption of Assignor's obligations and  liabilities under the Purchase  Agreement.


AGREEMENTS:


NOW,  THEREFORE, for good  and valuable  consideration, the receipt  and sufficiency of which are hereby acknowledged, the Parties agree as follows:


1.         Assignment of  Purchase  Agreement.   Assignor   hereby  assigns  and  transfers  to Assignee  all of Assignor's right, title, claim  and  interest  in and to the Purchase  Agreement, the Property,  and all sums  paid or deposited  into escrow  or to Seller  by Assignor  in connection with the Purchase  Agreement.


2.          Assumption.  Assignee  hereby acknowledges and agrees  to all of the terms of the Purchase  Agreement and  accepts  the foregoing assignment and assumes any and  all obligations and liabilities of Assignor  under the Purchase  Agreement, in accordance with the terms thereof.


3.         No Release.   The assignment and assumption set forth  in Sections 1 and 2 of this Assignment shall not release Assignor  from the obligation  of Assignor  or Assignee  to perform  in accordance with the terms of the Purchase  Agreement all obligations occurring prior to Closing. Assignor  acknowledges that,  notwithstanding such  assignment and  assumption, Assignor  shall remain  primarily  obligated   under  the  







Purchase  Agreement  for  obligations   of  the  Assignor occurring  prior  to  Closing,  including,  without  limitation,  the  indemnification   obligations  of Assignor set forth in the Purchase Agreement.


4.          Representations  and  Warranties.    Assignor  and  Assignee  hereby  represent  and warrant to Seller that Assignee is an Affiliated Entity of Assignor and that each and every representation  and warranty  made by Assignor  in the Purchase  Agreement  is true and correct with respect to Assignee as of the date of the Purchase Agreement and the Closing Date and such representations and warranties apply fully to this Assignment and shall survive the Deed.


5.        Ratification of Purchase Agreement.   Except as expressly modified under this Assignment,  the  Parties  hereby  ratify  and  affirm  the  terms  and  provisions  of  the  Purchase Agreement in their entirety.


6.         Governing   Law.     This  Assignment  shall  be  governed   by  and  construed   in accordance with the laws ofthe State ofNew York.


7.     Third  Party  Beneficiary.     Assignor  and  Assignee  acknowledge  and  agree  that
Seller is and is hereby made a third party beneficiary of this Assignment.


8.         Counterparts.   This Assignment  may be executed  in counterparts,  each of which, when taken together, shall constitute fully executed originals of this Assignment.   To facilitate execution of this Assignment,  the parties may exchange by electronic  mail (e-mail), or portable document format (pdf) counterparts of the signature page, which shall be effective as original signature pages for all purposes. A copy of the electronic  mail or PDF shall also be sent to the intended addressee by (i) personal delivery, (ii) certified mail, return receipt requested, (iii) for next day delivery  by nationally  recognized overnight delivery service that provides evidence of the date of delivery, in any case with all charges prepaid, addressed to the appropriate  party at its address  listed  above.    Delivery  of  the  execution  original  to  the  Assignment  or  any  e-mail signature or PDF thereof may be given on behalf of a party by the attorney of such party.


[Signature Page Follows]









ASSIGNOR: BEHRINGER HARVARD OPPORTUNITY OP II LP, a Delaware  Limited Partnership




By:   /s/MICHAEL J. O'HANLON
Name: Michael J. O'Hanlon
Title: Chief Executive Officer and President




ASSIGNEE:
7979 E. Tufts  Ave, LLC, a Delaware limited liability company


By: 7979 E. TUFTS AVE HOLDING, LLC, a Delaware limited liability company, its sole member




By:  /s/TERRI WARREN REYNOLDS
Name: Terri Warren Reynolds
Title: Senior Vice President, Legal, General Counsel and Secretary