Exhibit
10.16


 


ASSIGNMENT AND ASSUMPTION OF


AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROW
INSTRUCTIONS


 


THIS ASSIGNMENT is made and entered into as of this 5th day
of August, 2009, by and between BEHRINGER HARVARD MULTIFAMILY OP I LP, a
Delaware limited partnership any (hereinafter referred to as “Assignor”),
and BEHRINGER HARVARD WATERFORD PLACE REIT, LLC, a Delaware limited liability
company (hereinafter referred to as “Assignee”).


 


W I T N E S S E T H :


 


WHEREAS, Waterford Place Apartments, LLC, a California
limited liability company (“Seller”) and Assignor, as Buyer, entered into that Agreement of Sale
and Purchase And Joint Escrow Instructions dated May 29, 2009 and revived
and amended by that certain Revivor and First Amendment to Agreement of Sale and
Purchase And Joint Escrow Instructions dated July 2, 2009 and Second
Amendment to Agreement of Sale and Purchase and Joint Escrow Instructions dated
July 13, 2009 (collectively, “the Purchase Agreement”) whereby Seller
agreed to sell to Assignor and Assignor 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; and


 


WHEREAS, as permitted by the Agreement, Assignor and
Assignee have agreed that Assignor shall transfer and assign to Assignee all
right, title and interest of Assignor in and to the Agreement; and


 


WHEREAS, Assignor and Assignee have further agreed that
Assignee shall expressly assume all of the obligations of Assignor arising
under the Agreement.


 


NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by each party hereto,
Assignor and Assignee hereby agree as follows:


 


1.             Transfer and Assignment.  Assignor hereby transfers, assigns and sets
over to Assignee, its successors and assigns, all right, title and interest of
Assignor in and to the Agreement including the $750,000 Deposit and the
$1,250,000 Additional Deposit referenced in Section 2.3.1 of said
Agreement.


 


2.             Assumption of Obligations.  Assignee hereby assumes and agrees to observe
and perform all of the terms, covenants and conditions of Assignor under the
Agreement arising from and after the date of this Assignment.


 


3.             Binding Effect.  This instrument shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors and assigns.


 

















 


IN
WITNESS WHEREOF, Assignor and Assignee have each caused this Assignment to be
executed by its duly authorized signatory as of the day and year first above
written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD MULTIFAMILY OP I LP,

  
	
   

  	
  a
  Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BHMF, Inc.

  
	
   

  	
   

  	
  a
  Delaware corporation,

  
	
   

  	
   

  	
  its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Mark T. Alfieri

  
	
   

  	
   

  	
  Name:

  	
  Mark
  T. Alfieri

  
	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD WATERFORD PLACE REIT, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard Waterford Place Venture, LLC,

  
	
   

  	
   

  	
  a
  Delaware limited liability company,

  
	
   

  	
   

  	
  its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Behringer
  Harvard Waterford Place, LLC,

  
	
   

  	
   

  	
   

  	
  Its
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Mark T. Alfieri

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Mark
  T. Alfieri

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Chief
  Operating Officer

  



 
















 


EXHIBIT A


 


LEGAL DESCRIPTION


 


Real
property in the City of Dublin, County of Alameda, State of California,
described as follows:


 


PARCEL
1:


 


CONDOMINIUM
UNIT 1 OF PARCEL 1 OF PARCEL MAP 8187, FILED NOVEMBER 3, 2003, IN BOOK 274 OF
PARCEL MAPS, PAGES 10 AND 11, OFFICIAL RECORDS, AS SUCH UNIT IS SHOWN ON THE
CONDOMINIUM PLAN (“PLAN”) ATTACHED AS EXHIBIT “A” TO THE WATERFORD PLACE CONDOMINIUMS
DECLARATION OF RESTRICTIONS (“DECLARATION”) RECORDED NOVEMBER 3, 2003, SERIES
NO. 2003653881, OFFICIAL RECORDS.


 


RESERVING
THEREFROM MECHANICAL CHASE EASEMENTS AS SHOWN ON THE PLAN.


 


FURTHER
RESERVING THEREFROM EASEMENTS FOR ENCROACHMENT, UTILITY, ROOF AND MAINTENANCE,
AS DEFINED IN SECTIONS 2.4, 2.5 AND 2.6 OF THE DECLARATION.


 


PARCEL
2:


 


AN
UNDIVIDED 97% INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA LYING
WITHIN SAID PARCEL 1 OF PARCEL MAP 8187 AS SHOWN ON THE PLAN AND DEFINED IN THE
DECLARATION, EXCEPTING AND RESERVING THEREFROM THE FOLLOWING:


 


(A)
ALL CONDOMINIUM UNITS SHOWN ON THE PLAN AND DESCRIBED IN THE DECLARATION.


 


(B)
EXCLUSIVE USE COMMON AREAS FOR POSSESSION, USE AND ENJOYMENT OF THOSE AREAS
DESIGNATED ON THE PLAN AND DEFINED IN THE DECLARATION.


 


(C)
NON-EXCLUSIVE EASEMENTS FOR USE, ENJOYMENT, INGRESS, EGRESS AND SUPPORT IN AND
TO THE COMMON AREA AS SHOWN ON THE PLAN AND DESCRIBED IN THE
DECLARATION.


 


(D)
ALL EASEMENTS AS DEFINED IN THE DECLARATION.


 


PARCEL
3:


 


(A)
NON-EXCLUSIVE EASEMENTS FOR USE, ENJOYMENT, INGRESS, EGRESS AND SUPPORT IN AND
TO THE COMMON AREA, AS SHOWN ON THE PLAN AND DESCRIBED IN THE DECLARATION, FOR
THE BENEFIT OF PARCEL 1 HEREINABOVE.


 


(B)
NON-EXCLUSIVE EASEMENTS FOR ENCROACHMENT AND UTILITY, ALONG WITH A MAINTENANCE
EASEMENT DEFINED IN THE DECLARATION.


 


APN: 986-0017-014 and 986-0017-018