Exhibit
10.14


 


REVIVOR
AND FIRST AMENDMENT TO


AGREEMENT
OF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS


 


THIS
REVIVOR AND FIRST AMENDMENT TO AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW
INSTRUCTIONS (this
“First Amendment”) is made effective the 2nd day of July, 2009, by and between BEHRINGER HARVARD MULTIFAMILY OP I LP,  a Delaware limited partnership (“Buyer”), and
WATERFORD PLACE APARTMENTS, LLC, a
California limited liability company (“Seller”).


 


R E C I T
A L S:


 


WHEREAS, Seller and Buyer entered into that
Agreement of Sale and Purchase And Joint Escrow Instructions dated May 29,
2009 (“the Purchase Agreement”) whereby Seller agreed to sell to Buyer and
Buyer agreed to purchase from Seller the Property, as defined therein.  Unless otherwise expressly defined herein,
all initially-capitalized terms used herein shall have the meanings ascribed to
them in the Purchase Agreement.


 


WHEREAS, Buyer delivered a Disapproval Notice to
Seller on June 22, 2009 and, accordingly, the Purchase Agreement terminated
in accordance with its express terms and conditions.


 


WHEREAS, Buyer and Seller now desire to revive
the Purchase Agreement on certain amended terms and conditions as herein
provided.


 


NOW,
THEREFORE, in
consideration of the mutual covenants and agreements of the parties, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as follows:


 


1.             Recitals.  The foregoing recitals are true and are
incorporated herein by this reference as though set forth in full.


 


2.             Revivor.  Buyer and Seller hereby agree that the
Purchase Agreement, as amended by this First Amendment, is in full force and
effect and is revived as a continuing agreement between Buyer and Seller.  The terms and conditions of such revivor are
and shall be deemed automatically accomplished by the execution of this First Amendment
and the Purchase Agreement shall be deemed to have been in continuous existence
without interruption from and after execution of this First Amendment by Buyer
and Seller.


 


3.             Rescission
of Disapproval Notice.  Upon the
mutual execution and delivery of this First Amendment, this First Amendment
shall constitute Buyer’s (a) irrevocable rescission of the Disapproval
Notice, and (b) approval of all of the matters described in Sections
3.1 and 3.2 of the Purchase Agreement.


 

















 


4.             Amendment
of Purchase Price.  The Purchase
Price in Section 2.2 of the Purchase Agreement and all other places in
which the term Purchase Price is used is hereby amended to be SEVENTY NINE MILLION
SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($79,700,000.00).


 


5.             Deposit.  On or before 5:00 p.m. Pacific Time on
the second (2nd) business day after the mutual execution and delivery of this
First Amendment, Buyer shall deposit the Initial Deposit (to the extent the
Initial Deposit was previously returned to Buyer) and the Additional Deposit
with Escrow Agent in accordance with Section 2.3.1 of the
Agreement.  Buyer’s failure to make the
Initial Deposit (to the extent necessary) and the Additional Deposit by such
time shall constitute a default by Buyer under the Purchase Agreement.


 


6.             Seller’s
Closing Documents.  If the
Association (as defined below) has been activated and/or initial Board members
and/or officers were appointed upon the Association’s organization, new
Subsections (l) — (n) are hereby added to Section 9.5.1 of the
Agreement which shall read as follows:


 


“                                                                                                                                          (l)            Resignations executed by the two (2) existing
members of the Board of Directors (the “Board”) of the
Waterford Condominium Owners Association (the “Association”)
who represent the Apartments Condominium Unit together with resignations from
any officers of the Association that Buyer determines would not be retained by
the new Board appointed under (n) below;


 


(m)          A
Unanimous Consent of All Members of the Association executed by Seller as the
owner of the Retail Condominium Unit and to be executed by Buyer as the owner
of the Apartments Condominium Unit appointing the two (2) new Board
Members selected by Buyer to serve on the Board with the remaining Retail
Condominium Director; and


 


(n)           A
Unanimous Consent of All Members of the Board (after the appointment of new
Board members under (m) above) electing new officers to replace those
resigning under (l) above.”


 


7.             Amendment
to Section 10.23; Mixed Use Project. 
Section 10.23 of the Purchase Agreement is hereby deleted and
replaced, in its entirety, with the following: 
“Buyer expressly acknowledges and agrees that (a) the Property is
part of a larger mixed-use project that includes the Property and a retail
shopping center (the “Shopping Center”); (b) no later than upon the Close
of Escrow, the Property and the Shopping Center will be owned by different
parties; and (c) the Property and the Shopping Center are subject to that
certain “Waterford Place Declaration of Restrictions (CC&Rs)” recorded on November 3,
2003 as Recorder Series No. 2003-6533881 as amended by that certain “First
Amendment to Waterford Place Condominiums Declaration of Restrictions
(CC&Rs)” recorded on November 12, 2003 as Recorder Series No. 2003-2003671544
(collectively, the “Declaration”) which, among other things, creates
certain rights-of-ways, easements, rights, obligations and other matters
affecting the Property and the Shopping Center. 
Seller desires to make certain commercially reasonable amendments to the
Declaration in order to reflect its interests with respect to its retaining
ownership of the Shopping 


 


2

















 


Center  (the “Declaration
Amendment”).  The parties hereto hereby
intend to negotiate in good faith on the terms and conditions of the
Declaration Amendment, and if agreed upon on or before ten (10) days from
the effective date hereof, such Declaration Amendment shall be attached hereto pursuant
to an amendment to this Agreement and shall be executed at Closing by the
parties and recorded.  In the event that
the parties have not agreed upon the Declaration Amendment by the expiration of
such ten (10) day period, then either party by notice to the other shall
have the right to terminate this Agreement in which event the Deposit shall be
returned to Buyer and the parties shall have no further obligation to one
another except as set forth herein.  In
the event of agreement on the Declaration Amendment, Buyer also agrees that the
Declaration Amendment shall constitute a Permitted Exception.”


 


8.             Conflict.  This First Amendment is and shall be
construed as a part of the Purchase Agreement. 
In case of any inconsistency between this First Amendment and the Purchase
Agreement, the provisions containing such inconsistency shall first be
reconciled with one another to the maximum extent possible, and then to the
extent of any remaining inconsistency, the terms of this First Amendment shall
be controlling.


 


9.             Force
and Effect.  Except as set forth in
this First Amendment, the terms and conditions of the Purchase Agreement shall
remain unchanged and in full force and effect.


 


10.           Counterparts;
Authority; Electronic Signatures. 
The parties agree that this First Amendment may be executed in multiple
counterparts which, when signed by all parties, shall constitute a binding
agreement.  The parties further represent
and warrant that the each natural person who is executing this First Amendment
its behalf has the full power and authority to execute this First Amendment and
to bind it to the terms hereof. 
Signatures to this First Amendment transmitted by telecopy or electronic
mail shall be valid and effective to bind the party so signing.  Each party agrees to promptly deliver an
execution original of this First Amendment with its actual signature to the
other party, but a failure to do so shall not affect the enforceability of this
First Amendment, it being expressly agreed that each party to this First Amendment
shall be bound by its own telecopied or electronically mailed signature and
shall accept the telecopied or electronically mailed signature of the other
party to this First Amendment.


 


[Signatures on
Following Page]


 


3

















 


IN WITNESS WHEREOF, the undersigned have executed this Third Amendment
as of the date and year first set forth above.


 


	
  SELLER:

  	
  WATERFORD
  PLACE APARTMENTS LLC, a California limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Shea Properties
  Management Company, Inc., a Delaware corporation

  
	
   

  	
  Its: 

  	
  Manager

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Kirk Roloff

  
	
   

  	
   

  	
  Name: 

  	
  Kirk Roloff

  
	
   

  	
   

  	
  Title: 

  	
  Assistant Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Stephen D.
  Stambaugh

  
	
   

  	
   

  	
  Name: 

  	
  Stephen D. Stambaugh

  
	
   

  	
   

  	
  Title: 

  	
  Assistant Secretary

  
	
   

  	
   

  
	
  BUYER:

  	
  BEHRINGER HARVARD MULTIFAMILY OP
  I LP, a
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  BHMF, Inc., a
  Delaware corporation

  
	
   

  	
  Its:

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Mark T. Alfieri

  
	
   

  	
   

  	
   

  	
  Mark
  T. Alfieri

  
	
   

  	
   

  	
   

  	
  Chief
  Operating Officer

  
						



 


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