**Exhibit10.28**

 

Galleryat NoHo Commons

 

AMENDMENT TO AGREEMENT OF SALE

 

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

 

RECITALS

 

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

 

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

 

WHEREAS,the CRA and/or The U.S. Department of Housing and Urban Development (“HUD”) arecurrently 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 agreeto 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 theterms set forth in this Amendment.

 

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

 

1.             Capitalized terms usedherein and not otherwise defined or described herein shall have the meaningsascribed to them in the Agreement.

 

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

 

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

 

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4.             Asused in this Amendment, the term “Purchaser CRA Audit Liability” means allcosts, liabilities, expenses, fees (including reasonable attorneys fees, court costs and costs of investigationand appeal), damages and all other amountsincurred by Seller as a result of claims, loss, damages or actions by CRA and/orHUD against Seller arising out of the CRA/LA Audit for matters that occurduring Purchaser’s period of ownership of the Property after Closing including,without limitation, any claim or action against Seller for monitoring orcompliance issues, excluding any Seller CRA Audit Liability.

 

5.             Paragraph18(d) of the Agreement is amended and restated in its entirety as follows:

 

Purchaser’sright to make a claim against Seller for a breach of an indemnity (except forSeller’s indemnity for a brokerage commission), representation, warranty orcovenant under this Agreement or the Exhibits attached hereto or for  any Seller CRA/LA Audit Liability or for anySeller’s Partial Assignment Indemnity Liability (collectively or individually,a “Claim”) shall expire on the one year anniversary of the Closing and deliveryof the Deed (“Survival Date”).  As to anyClaim, Purchaser must: (i) notify Seller of the existence of the Claim inquestion (“Claim Notice”); and (ii) if not otherwise resolved, thenPurchaser may, at its option, institute legal proceedings in a court ofcompetent jurisdiction within one (1) year after the Survival Date (“JudicialProceedings Date”).  Any Claim for whicha Claim Notice is not delivered by Purchaser to Seller on or prior to theSurvival Date or for which legal proceedings are not instituted on or prior tothe Judicial Proceedings Date shall be deemed to have been waived by Purchaserand rendered null and void and of no further force or effect.  Seller’s total liability in the aggregate forall Claims shall not exceed One Million ($1,000,000.00) Dollars.  Seller shall not be liable for any Claim(s) untilthe aggregate of all Claims exceeds Twenty Thousand ($20,000.00) Dollars.  Theterms and limitations placed upon Seller in this Paragraph 18(d) shallapply notwithstanding anything to the contrary in this Agreement.  Fairfield California Housing Fund LLC (“FCHF”)irrevocably and absolutely guarantees to Purchaser the timely payment infull 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 forthabove).  FCHF represents and warrants that FCHF, as an affiliate of Seller, derives substantial benefit inconsideration for the foregoing guaranty.

 

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

 

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

 

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

 

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

 

[signature page tofollow]

 

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IN WITNESS WHEREOF, theparties hereto have caused this instrument to be duly executed the day and yearfirst 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 |

 

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Fairfield California Housing Fund LLC, a Delawarelimited liability company, joins in the execution of thisAmendment solely to acknowledge and consent to its obligation to guaranty of aClaim as set forth in Paragraph 18(d) of the Agreement, as amended by thisAmendment, and that it is hereby bound to the terms and conditions of Paragraph18(d) of the Agreement, as amended by this Amendment for thatpurpose.  Fairfield California Housing Fund LLC acknowledges and agrees thatit is the owner of a direct or indirect interest in Seller and will materiallybenefit 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 |

 

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