**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 intoeffective as of February 20, 2009, by and between Verandah OwnerLimited Partnership, a Delaware limited partnership (“Seller”), andBehringer Harvard Multifamily OP I LP, a Delaware limited partnership (“Purchaser”)with reference to the following recitals of fact:

 

RECITALS:

 

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

 

B.            OriginalPurchaser did assign all of its right, title and interest under the OriginalAgreement pursuant to Assignment and Assumption of Sale, Purchase and EscrowAgreement dated January 29, 2009.

 

C.            Purchaserand Seller now desire to modify the Agreement in accordance with the terms andconditions set forth in this Amendment. For purposes hereof, the Original Agreement and this Amendment are collectivelyreferred to as the “Agreement.”

 

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

 

1.             OriginalAgreement.  Purchaser and Selleracknowledge that the Original Agreement is in full force and effect, except asmodified by this Amendment.  Allcapitalized terms not otherwise defined herein shall have the meaning set forthin the Original Agreement.  In the eventof any inconsistency between the terms and conditions set forth in the OriginalAgreement and the terms and conditions set forth in this Agreement, the termsand conditions in this Amendment shall control.

 

2.             PurchasePrice.  The Purchase Price as definedin Section 2.1 of the Original Agreement is hereby reduced by $600,000.00making the amended Purchase Price Twenty-Eight Million Six Hundred Thousand and00/100 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 becomenon-refundable notwithstanding that Purchaser shall still retain the right toterminate the Agreement under Section 5.7 as modified by paragraph 4below.  The completion prior to Closingof the repairs from water damage as described on the attached letter from FrankCrystal & Company to Units 122 and 222 shall also be a conditionprecedent for the $200,000 Deposit and any Additional Funds deposited under Section 2.1.2of the Agreement to become non-refundable.

 

4.             InspectionPeriod.  The Inspection Period asdefined in Section 5.7 of the Original Agreement is hereby extended suchthat the Inspection Period shall expire Tuesday, at 5 P.M. Central 

 

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StandardTime, on February 24, 2009.  Inaddition, any use in the Agreement of the term “Investigation Period” shallmean the Inspection Period, the use of such terms being one and the same.

 

5.             NoOther Modifications.  Except asotherwise provided herein, all other terms and provisions of the Agreementshall remain in full force and effect, unmodified by this Amendment.

 

6.             BindingEffect.  The provisions of thisAmendment 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 numberof original counterparts.  Any suchcounterpart, when executed, shall constitute an original of this Amendment, andall such counterparts together shall constitute one and the sameAmendment.  For purposes of thisAmendment, facsimile signatures shall be deemed to be originals.

 

IN WITNESS WHEREOF, this Amendment has been dulyexecuted 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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