**Exhibit10.14**

 

**REVIVORAND FIRST AMENDMENT TO**

**AGREEMENTOF SALE AND PURCHASE AND JOINT ESCROW INSTRUCTIONS**

 

**THISREVIVOR AND FIRST AMENDMENT TO AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROWINSTRUCTIONS**(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,**aCalifornia limited liability company (“Seller”).

 

**R E C I TA L S:**

 

**WHEREAS,** Seller and Buyer entered into thatAgreement of Sale and Purchase And Joint Escrow Instructions dated May 29,2009 (“the Purchase Agreement”) whereby Seller agreed to sell to Buyer andBuyer 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 tothem in the Purchase Agreement.

 

**WHEREAS,** Buyer delivered a Disapproval Notice toSeller on June 22, 2009 and, accordingly, the Purchase Agreement terminatedin accordance with its express terms and conditions.

 

**WHEREAS**, Buyer and Seller now desire to revivethe Purchase Agreement on certain amended terms and conditions as hereinprovided.

 

**NOW,THEREFORE**, inconsideration of the mutual covenants and agreements of the parties, and othergood and valuable consideration, the receipt and adequacy of which is herebyacknowledged, the parties agree as follows:

 

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

 

2.             Revivor.  Buyer and Seller hereby agree that thePurchase Agreement, as amended by this First Amendment, is in full force andeffect and is revived as a continuing agreement between Buyer and Seller.  The terms and conditions of such revivor areand shall be deemed automatically accomplished by the execution of this First Amendmentand the Purchase Agreement shall be deemed to have been in continuous existencewithout interruption from and after execution of this First Amendment by Buyerand Seller.

 

3.             Rescissionof Disapproval Notice.  Upon themutual execution and delivery of this First Amendment, this First Amendmentshall constitute Buyer’s (a) irrevocable rescission of the DisapprovalNotice, and (b) approval of all of the matters described in Sections3.1 and 3.2 of the Purchase Agreement.

 

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

 

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

 

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

 

“                                                                                                                                          (l)            Resignations executed by the two (2) existingmembers of the Board of Directors (the “**Board**”) of theWaterford Condominium Owners Association (the “**Association**”)who represent the Apartments Condominium Unit together with resignations fromany officers of the Association that Buyer determines would not be retained bythe new Board appointed under (n) below;

 

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

 

(n)           AUnanimous Consent of All Members of the Board (after the appointment of newBoard members under (m) above) electing new officers to replace thoseresigning under (l) above.”

 

7.             Amendmentto Section 10.23; Mixed Use Project. Section 10.23 of the Purchase Agreement is hereby deleted andreplaced, in its entirety, with the following: “Buyer expressly acknowledges and agrees that (a) the Property ispart of a larger mixed-use project that includes the Property and a retailshopping center (the “Shopping Center”); (b) no later than upon the Closeof Escrow, the Property and the Shopping Center will be owned by differentparties; and (c) the Property and the Shopping Center are subject to thatcertain “Waterford Place Declaration of Restrictions (CC&Rs)” recorded on November 3,2003 as Recorder Series No. 2003-6533881 as amended by that certain “FirstAmendment 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, createscertain rights-of-ways, easements, rights, obligations and other mattersaffecting the Property and the Shopping Center. Seller desires to make certain commercially reasonable amendments to theDeclaration in order to reflect its interests with respect to its retainingownership of the Shopping 

 

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

 

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

 

9.             Forceand Effect.  Except as set forth inthis First Amendment, the terms and conditions of the Purchase Agreement shallremain unchanged and in full force and effect.

 

10.           Counterparts;Authority; Electronic Signatures. The parties agree that this First Amendment may be executed in multiplecounterparts which, when signed by all parties, shall constitute a bindingagreement.  The parties further representand warrant that the each natural person who is executing this First Amendmentits behalf has the full power and authority to execute this First Amendment andto bind it to the terms hereof. Signatures to this First Amendment transmitted by telecopy or electronicmail shall be valid and effective to bind the party so signing.  Each party agrees to promptly deliver anexecution original of this First Amendment with its actual signature to theother party, but a failure to do so shall not affect the enforceability of thisFirst Amendment, it being expressly agreed that each party to this First Amendmentshall be bound by its own telecopied or electronically mailed signature andshall accept the telecopied or electronically mailed signature of the otherparty to this First Amendment.

 

[Signatures onFollowing Page]

 

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**IN WITNESS WHEREOF**, the undersigned have executed this Third Amendmentas 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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