**Exhibit10.16**

 

**ASSIGNMENT AND ASSUMPTION OF**

**AGREEMENT OF SALE AND PURCHASE AND JOINT ESCROWINSTRUCTIONS**

 

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

 

**W I T N E S S E T H :**

 

**WHEREAS**, Waterford Place Apartments, LLC, a Californialimited liability company (“Seller”) and Assignor, as Buyer, entered into that Agreement of Saleand Purchase And Joint Escrow Instructions dated May 29, 2009 and revivedand amended by that certain Revivor and First Amendment to Agreement of Sale andPurchase And Joint Escrow Instructions dated July 2, 2009 and SecondAmendment to Agreement of Sale and Purchase and Joint Escrow Instructions datedJuly 13, 2009 (collectively, “the Purchase Agreement”) whereby Selleragreed to sell to Assignor and Assignor agreed to purchase from Seller theProperty, as defined therein.  Unlessotherwise expressly defined herein, all initially-capitalized terms used hereinshall have the meanings ascribed to them in the Purchase Agreement; and

 

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

 

**WHEREAS**, Assignor and Assignee have further agreed thatAssignee shall expressly assume all of the obligations of Assignor arisingunder the Agreement.

 

**NOW, THEREFORE**, for and in consideration of the mutualcovenants contained herein and for other good and valuable consideration, thereceipt 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 setsover to Assignee, its successors and assigns, all right, title and interest ofAssignor in and to the Agreement including the $750,000 Deposit and the$1,250,000 Additional Deposit referenced in Section 2.3.1 of saidAgreement.

 

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

 

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

 

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INWITNESS WHEREOF, Assignor and Assignee have each caused this Assignment to beexecuted by its duly authorized signatory as of the day and year first abovewritten.

 
|   | **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 |

 

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**EXHIBIT A**

 

**LEGAL DESCRIPTION**

 

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

 

PARCEL1:

 

CONDOMINIUMUNIT 1 OF PARCEL 1 OF PARCEL MAP 8187, FILED NOVEMBER 3, 2003, IN BOOK 274 OFPARCEL MAPS, PAGES 10 AND 11, OFFICIAL RECORDS, AS SUCH UNIT IS SHOWN ON THECONDOMINIUM PLAN (“PLAN”) ATTACHED AS EXHIBIT “A” TO THE WATERFORD PLACE CONDOMINIUMSDECLARATION OF RESTRICTIONS (“DECLARATION”) RECORDED NOVEMBER 3, 2003, SERIESNO. 2003653881, OFFICIAL RECORDS.

 

RESERVINGTHEREFROM MECHANICAL CHASE EASEMENTS AS SHOWN ON THE PLAN.

 

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

 

PARCEL2:

 

ANUNDIVIDED 97% INTEREST AS TENANT IN COMMON IN AND TO THE COMMON AREA LYINGWITHIN SAID PARCEL 1 OF PARCEL MAP 8187 AS SHOWN ON THE PLAN AND DEFINED IN THEDECLARATION, 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 AREASDESIGNATED ON THE PLAN AND DEFINED IN THE DECLARATION.

 

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

 

(D)ALL EASEMENTS AS DEFINED IN THE DECLARATION.

 

PARCEL3:

 

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

 

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

 

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

 

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