Exhibit 10.93


 




 





SUPPLEMENT TO CONTRIBUTION AGREEMENT


 


BETWEEN


 


FRISCO SQUARE B1-6, F1-11, LTD.,

a Texas limited partnership,


 


AS TRANSFEROR


 


 


AND


 


 


BEHRINGER HARVARD FRISCO SQUARE LP,

a Delaware limited partnership


 


AS TRANSFEREE


 


 


As of August 3, 2007




 





 

















 


SUPPLEMENT TO CONTRIBUTION AGREEMENT


 


THIS
SUPPLEMENT TO CONTRIBUTION AGREEMENT (this “Supplement”) is made to be
effective as of this 3rd day of August 2007, by and between
FRISCO SQUARE B1-6, F1-11, LTD., a Texas limited partnership (“Transferor”),
and BEHRINGER HARVARD FRISCO SQUARE LP, a Delaware limited partnership (“Transferee”).


 


WHEREAS,
Transferee and Transferor (together with FRISCO SQUARE LAND, LTD., a Texas
limited partnership, FRISCO SQUARE PROPERTIES, LTD., a Texas limited
partnership and FRISCO SQUARE B1-7, F1-10, LTD., a Texas limited partnership,
also as transferors) are parties to that certain Contribution Agreement dated
as of August 3, 2007 (the “Contribution Agreement”).


 


WHEREAS,
Transferor is a party to that certain Parking Lot Contract, as defined in the
Contribution Agreement, relating to real property known as (i) Lot B1-10,
Block B-1 of Frisco Square Phase 2, an addition to the City of Frisco, Collin
County, Texas, according to the map or plat thereof recorded in Volume P, Page 724,
Map Records, Collin County, Texas, and (ii) Lot F1-9, Block F-1 of Frisco
Square Phase 2, an addition to the City of Frisco, Collin County, Texas,
according to the map or plat thereof recorded in Volume P, Page 724, Map
Records, Collin County, Texas, said land being currently improved as parking
lots and herein referred to collectively as the “Parking Lots”.


 


WHEREAS,
Transferor and Transferee desire and hereby agree that (i) Transferor
shall close under and acquire the Parking Lots pursuant to the Parking Lot
Contract by a date not later than five (5) business days following the
date hereof (as extended), and (ii) within one (1) business day
following such closing under the Parking Lot Contract, Transferor shall
contribute and deed to Transferee or its subsidiary said Parking Lots, subject
to the terms and conditions hereinafter set forth. The transactions
contemplated hereby are intended by the parties to be a part of the
transactions contemplated by the Contribution Agreement and the arrangements
and accommodations made hereunder with respect to timing and otherwise are
solely for the convenience of the parties.


 


WITNESSETH:


 


ARTICLE 1


 


ACQUISITION, CONTRIBUTION AND CONVEYANCE


 


1.1           Agreement
of Acquisition. Subject to the terms and conditions of the Parking Lot
Contract (and any extension of the closing date thereunder required or
requested by the City of Frisco to allow City of Frisco City Council approval
of a closing date later than July 20, 2007), Transferee agrees to close
under and in accordance with the terms of the Parking Lot Contract by a date
that is not later than five (5) business days following the date hereof. Transferor
and Transferee have, under the Contribution Agreement, agreed, and each hereby
confirm, that the purchase price payable under the Parking Lot Contract will be
funded out of the proceeds payable under the Contribution Agreement to
Transferor and its affiliates as consideration under the Contribution Agreement
(the “Proceeds”)and delivered by wire transfer into escrow pursuant to joint
instructions issued by Transferor and Transferee (the “Joint Instructions”)
to the Title Company (the “Parking Lot Escrow”) with LandAmerica Wilson
Title Company, 1700 Redbud, Suite 300, McKinney, Texas 75069 (the “Title
Company” herein and under the Parking Lot Contract) as evidenced by
Transferor’s signed settlement statement provided to Transferee and to Chicago
Title, said Parking Lot Escrow funds to be jointly released by Transferor and
Transferee upon the satisfaction of all conditions to closing under the Parking
Lot Contract. In addition, Transferor shall deposit an additional portion of
the Cash Amount in the amount of One Million Dollars ($1,000,000.00) into
escrow (the “Additional Parking Lot Escrow”) at the Closing of the


 


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Contribution
Agreement, also pursuant to the Joint Instructions and such amount shall be
released to Transferor only upon the closing of the transactions between
Transferor and Transferee contemplated hereunder in accordance with the Joint
Instructions. Transferee hereby covenants and agrees to execute any and all
necessary authorizations and/or instructions required by the Title Company
and/or Transferor upon satisfaction of all conditions to closing under the
Parking Lot Contract reasonably necessary to effect the release to the City of
Frisco of the funds escrowed (as set forth above) in respect of the purchase
price payable under the Parking Lot Contract. Transferor shall be solely
responsible for any and all costs and expenses payable in excess of said
escrowed funds in connection with the closing under the Parking Lot Contract.


 


1.2           Contribution
and Conveyance. Subject to the terms and conditions hereinafter set forth,
Transferor agrees to contribute and convey and Transferee or its designated
subsidiary agrees to accept and acquire the following:


 


(a)           the Parking Lots,
together with all and singular the rights and appurtenances pertaining to such
property, including any right, title and interest of Transferor in and to
adjacent streets, alleys or rights-of-way;


 


(b)           all improvements on the
Parking Lots (the “Improvements”); and


 


(c)           the personal property
owned by Transferor and located upon the Land or within the Improvements and
used in connection with the operation of the Land and the Improvements (the
property described in clause (c) of this Section 1.1 being herein
referred to collectively as the “Personal Property”).


 


1.3           Property
Defined. The Parking Lots, the Improvements and the Personal Property are
hereinafter sometimes referred to collectively as the “Property.”


 


1.4           Permitted
Exceptions. The Property shall be conveyed subject to the matters which are
deemed to be Permitted Exceptions pursuant to Section 2.3 hereof and
listed on Exhibit A attached hereto (herein referred to
collectively as the “Permitted Exceptions”).


 


1.5           Consideration.
Consideration for Transferor’s capital contribution of certain property under
the Contribution Agreement and for its further contribution of the Property to
Transferee is addressed in full under the Contribution Agreement.


 


ARTICLE 2


 


TITLE AND SURVEY


 


2.1           Title
Insurance. Title Company has issued one or more pro forma Owner’s
Policy(ies) of Title Insurance in form satisfactory to Transferee and
Transferor (the “Pro Forma Policy”).


 


2.2           Survey.
The City of Frisco has furnished to Transferee a current Survey (the “Survey”)
of the Parking Lot and Improvements in form acceptable to Transferee and
Transferor, containing the certification by surveyor in the form of Exhibit B
attached hereto and in form sufficient for Title Company to delete the
general survey exception under the Pro Forma Policy. Unless otherwise agreed by
Transferor and Transferee, the platted lot and block description(s) contained
in the Survey shall be the legal description employed in the documents of
conveyance of the Property.


 


2.3           Obligation
to Cure Liens. Transferor agrees to transfer the Property to Transferee
free and clear of any monetary liens.


 


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2.4           Owner’s
Policy of Title Insurance. Title Company has agreed to (and Transferor will
cause Title Company to) issue, promptly upon return of all recorded instruments
delivered in connection with the Closing (including, without limitation, those
instruments recorded to release the Rejected Liabilities), to Transferee an
Owner’s Policy of Title Insurance (the “Title Policy”) in form identical
to the Pro Forma Policy (except as revised to reflect recording information for
said recorded instruments of Closing), and to credit against the premium
therefore the premium paid by Transferor for its Owner’s Policy of Title
Insurance issued at the closing under the Parking Lot Contract, such that
Transferor’s Title Policy shall be issued at no additional cost.


 


ARTICLE 3


 


FINANCIAL REPORTING


 


3.1           Financial
Reporting. Transferee has advised
Transferor that Transferee, at its sole cost and expense, must cause to be
prepared up to three (3) years of audited financial statements in respect
of the Property in compliance with the policies of Transferee and certain laws
and regulations, including, without limitation, Securities and Exchange
Commission Regulation S-X, Rule 3-14. Transferor agrees to use reasonable
efforts to cooperate with Transferee’s auditors in the preparation of such audited
financial statements (it being understood and agreed that the foregoing
covenant shall survive the Closing). Without limiting the generality of the
preceding sentence (a) Transferor shall, during normal business hours,
allow Transferee’s auditors reasonable access to such books and records
maintained by Transferor (and Transferor’s manager of the Property) in respect
of the Property as necessary to prepare such audited financial statements; (b) Transferor
shall use reasonable efforts to provide to Transferee such financial
information and supporting documentation that are in Transferor’s (or an
affiliate of Transferor’s) possession or reasonable control, as are necessary
for Transferee’s auditors to prepare audited financial statements; (c) Transferor
will make available for interview by Transferee and Transferee’s auditors the
manager of the Property or other agents or representatives of Transferor
responsible for the day-to-day operation of the Property and the keeping of the
books and records in respect of the operation of the Property; and (d) if
Transferor has audited financial statements with respect to the Property,
Transferor shall promptly provide Transferee’s auditors with a copy of such
audited financial statements. If after the Closing Date Transferor obtains an
audited financial statement in respect of the Property for a fiscal period
prior to the Closing Date that was not completed as of the Closing Date, then
Transferor shall promptly provide Transferee with a copy of such audited financial
statement, and the foregoing covenant shall survive Closing. Transferee
agrees to indemnify and hold Transferor harmless of and from any claim for
physical damages or physical injuries arising from Transferee’s inspection of
the Property, and notwithstanding anything to the contrary in this Agreement,
such obligation to indemnify shall survive Closing.


 


ARTICLE 4


 


CLOSING


 


4.1           Time
and Place. Closing of the transaction contemplated hereby (“Closing”)
shall be held at or through the offices of the Title Company on the date that
is not more than one (1) business day following closing of the
contemplated transaction under the Parking Lot Contract (the “Closing Date”)
unless otherwise mutually agreed by Transferor and Transferee. At Closing,
Transferor and Transferee shall perform the obligations set forth in,
respectively, Section 4.2 and Section 4.3, the performance of which
obligations shall be concurrent conditions.


 


4.2           Transferor’s
Obligations at Closing. At Closing, Transferor shall:


 


(a)           deliver to Transferee a
Special Warranty Deed (the “Deed”) in substantially the form


 


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attached to the Contribution
Agreement to Transferor with respect to the Parking Lots, executed and
acknowledged by Transferor and in recordable form, conveying the Parking Lots
and Improvements to Transferee, subject only to the Permitted Exceptions;


 


(b)           deliver to Transferee a
Bill of Sale (the “Bill of Sale”) in the form of Exhibit C
attached hereto and made a part hereof, executed and acknowledged by
Transferor or its applicable affiliates;


 


(c)           deliver to Transferee a
FIRPTA Affidavits in the form of Exhibit D attached hereto and
made a part hereof, duly executed by Transferor or its applicable
affiliates;


 


(d)           execute and deliver any
necessary settlement statements;


 


(e)           deliver to Transferee
such evidence as Transferee’s counsel and/or the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Transferor;


 


(f)            deliver to Transferee
possession and occupancy of the Property, subject to the Permitted Exceptions;
and


 


(g)           cause to be delivered
to Transferee the Title Policy pursuant to Section 2.3 hereof, and all
Title Company required affidavits, in commercially reasonable form, in
connection therewith.


 


4.3           Transferee’s
Obligations at Closing. At Closing, Transferee shall (a) execute and
deliver any necessary settlement statement, and (b) deliver to Transferor
such evidence as Transferor’s counsel and/or the Title Company may reasonably
require as to the authority of the person or persons executing documents on
behalf of Transferee.


 


4.4           Taxes.
Real estate taxes and assessments and personal property taxes with respect to
the Property shall be assumed from and after the closing under the Parking Lot
Contract by Transferee and all such taxes for the year 2007 shall be payable by
Transferee. Transferor hereby agrees to reasonably cooperate with Transferee in
obtaining a partial year tax assessment for the Property reflecting the fact
that a taxable entity owned the Property only from and after the closing under
the Parking Lot Contract (and taxes should, therefore, only apply from and
after said date).


 


4.5           Closing
Costs. Transferor shall pay (a) the fees of any counsel representing
it in connection with this transaction; (b) the basic premium for the
Title Policy; (d) the fees for recording the Deed conveying the Property
to Transferee; and (f) one-half (1/2) of any escrow fee which may be
charged by the Title Company. Transferee shall pay (x) the cost of any
mortgagee’s policy(ies); (y) the fees of any counsel representing
Transferee in connection with this transaction; and (z) one-half (1/2) of any
escrow fees charged by the Title Company. All other costs and expenses incident
to this transaction and the closing thereof shall be paid by the party
incurring same.


 


ARTICLE 5


 


REPRESENTATIONS, WARRANTIES AND COVENANTS


 


5.1           Representations
and Warranties of Transferor. Transferor hereby represents and warrants to
Transferee as follows:


 


(a)           Transferor has the full
right, power and authority to enter into this Supplement and to


 


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perform all of its
obligations under this Supplement, and the execution and delivery of this
Supplement and the performance by Transferor of its obligations under this
Supplement require no further action or approval of Transferor’s partners or of
any other person in order to constitute this Supplement as a binding and
enforceable obligation of Transferor.


 


(b)           To the current, actual
knowledge of Transferor, there are no written leases or occupancy agreements
affecting the Property.


 


(c)           To Transferor’s
current, actual knowledge, the Parking Lots and Improvements are not in
material violation of any governmental order, regulation, statute, code or
ordinance dealing with the use, construction, operation, safety and/or
maintenance thereof, and all existing zoning and building codes and other
applicable laws and governmental regulations permit the operation of the Property
in accordance with its present usage and Transferor has not received written
notice of any violation of the above.


 


(d)           Transferor has not received written notice
of and to Transferor’s current, actual knowledge, there is no pending
condemnation, expropriation, eminent domain, litigation, administrative action
or other legal proceeding affecting all or any portion of the Property, and
Transferor has not received any written or oral notice of and to Transferor’s
knowledge has no current, actual knowledge that any such proceeding is
contemplated.


 


(e)           Transferor has no
current, actual knowledge of any change contemplated in any applicable laws or
any judicial or administrative action, or any action by adjacent landowners
which would prevent, limit, impede or render more costly Transferee’s
contemplated use of the Property.


 


(f)            No person, firm or
entity, other than Transferor and Transferee has any right to acquire the
Property or any part thereof.


 


(g)           Transferor has not
disposed of or otherwise released or authorized to be released any hazardous or
toxic substances, petroleum products, chemicals, or wastes of any kind on, in,
or under the Property, including any surface waters or groundwater located on
such Property in violation of applicable law, nor has Transferor caused or to
Transferor’s current actual knowledge authorized to be released or discharged
any hazardous or toxic substances, petroleum products, chemicals, or wastes of
any kind on, in, or under any tracts in proximity to the Property, including
the surface or groundwaters thereof in violation of applicable law. To
Transferor’s current, actual knowledge, there are no hazardous or toxic
substances, petroleum products, chemicals, or wastes on, in, or under the
Property, including surface or groundwaters, regardless of source or cause, in
violation of applicable law and there are no underground storage tanks on the
Property except as may be disclosed by that certain Phase I Environmental
Assessment prepared by Pond, Robinson & Associates, LP for Behringer
Harvard and dated as of June 2007.


 


5.2           Representations
and Warranty of Transferee. Transferee hereby represents and warrants to
Transferor that Transferee is a limited partnership, duly formed and existing
under the laws of the State of Delaware and duly qualified to do business in
the State of Texas. Transferee has the full right, power and authority to enter
into this Supplement and to carry out Transferee’s obligations hereunder, and
to perform all of its obligations under this Supplement, and the execution
and delivery of this Supplement and the performance by Transferee of its
obligations under this Supplement requires no further action or approval of
Transferee’s partners or of any other person in order to constitute this
Supplement as a binding and enforceable obligation of Transferee.


 


5.3           Survival
of Obligations. Transferor and Transferee agree as follows:


 


5

















 


(a)           All representations,
warranties and covenants made by Transferor herein shall survive Closing for a
period of one (1) year, unless a longer survival period is expressly
provided herein. Transferor shall indemnify and hold Transferee free and
harmless from and against all losses, costs, damages and expenses of every kind
and nature whatsoever (including reasonable attorneys’ fees and costs)
sustained by Transferee as a result of any breach of any representation,
warranty or covenant made by Transferor in this Supplement of which Transferee
has notified Transferor in writing by the expiration of said one (1) year
period.


 


(b)           All representations and
warranties of Transferee shall survive Closing for a period of one (1) year.
Transferee shall indemnify and hold Transferor free and harmless from and
against all losses, costs, damages, and expenses of every kind and nature
whatsoever (including reasonable attorneys’ fees and costs) sustained by
Transferor as a result of any breach of any representation or warranty made by
Transferee of which Transferor has notified BHFS in writing by the expiration
of said one (1) year period.


 


ARTICLE 6


 


CONDITIONS PRECEDENT TO THE CLOSING


 


6.1           Conditions
Precedent of Transferee. In addition to all other conditions set forth in
this Supplement, Transferee’s obligation to consummate the Closing is subject
to the satisfaction of each and every one of the conditions precedent set forth
in this section 6.1 (all of which are for the sole benefit of Transferee):


 


(a)           All representations of
Transferor set forth in Section 5.1 shall be true, correct and complete in
all material respects as of the Closing Date.


 


(b)           Transferor shall have
performed in all material respects all obligations required to be performed by
Transferor hereunder prior to or in connection with the Closing.


 


6.2           Conditions
Precedent of Transferor. In addition to all other conditions set forth in
this Supplement, Transferor’s obligation to consummate the Closing is subject
to the satisfaction of each and every one of the conditions precedent set forth
in this Section 6.2 (all of which are for the sole benefit of Transferor):


 


(a)           All representations of
Transferee set forth in Section 5.2 shall be true, correct shall be true,
correct and complete in all material respects as of the Closing Date; and


 


(b)           Transferee shall have
performed in all material respects all obligations required to be performed by
Transferee hereunder prior to or in connection with the Closing.


 


6.3           Failure
of Condition Precedent. Upon the failure of any of the foregoing conditions
precedent, the party benefited by such failed condition shall have the option
to (a) waive such condition precedent and proceed to Closing, or (b) terminate
this Supplement by sending written notice to the other party on or before the
date of Closing.


 


ARTICLE 7


 


DEFAULT


 


7.1           Default
by Transferee. In the event that Transferee fails to consummate this
Supplement for any reason, except Transferor’s default or the permitted
termination of this Supplement by either Transferor or Transferee as herein
expressly provided, Transferor shall be entitled, as its exclusive remedy, to
terminate this


 


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Supplement by
giving written notice thereof to Transferor, whereupon neither party shall have
any further rights or obligations under this Supplement.


 


7.2           Default
by Transferor. In the event that Transferor fails fail to consummate this
Supplement for any reason, except Transferee’s default, Transferee shall be
entitled, as its exclusive remedies, either (i) to terminate this
Supplement by giving written notice thereof to Transferor, whereupon neither
party shall have any further rights or obligations under this Supplement, or (ii) to
enforce specific performance of Transferor’s obligations under this Supplement;
provided, however, if Transferor’s default is such that specific performance
cannot be granted as a judicial remedy, then Transferee may seek any and
all other remedies available at law or in equity.


 


ARTICLE 8


 


INTENTIONALLY OMITTED


 


ARTICLE 9


 


COMMISSIONS


 


9.1           Brokerage.
Each party agrees that should any claim be made for brokerage commissions or
finder’s fees by any broker or finder by, through or on account of any acts of
said party or its representatives, said party will hold the other party free
and harmless from and against any and all loss, liability, cost, damage and
expense in connection therewith. The provisions of this paragraph shall survive
Closing.


 


ARTICLE 10


 


MISCELLANEOUS


 


10.1         Disclaimers.
AS A MATERIAL PART OF THE CONSIDERATION FOR THIS SUPPLEMENT, TRANSFEROR
AND TRANSFEREE AGREE THAT EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 OF
THIS SUPPLEMENT, TRANSFEREE IS ACQUIRING THE PROPERTY “AS IS” WITH ALL FAULTS
AND DEFECTS, LATENT AND PATENT, AND TRANSFEREE ACKNOWLEDGES AND AGREES THAT
TRANSFEROR HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, SUPPLEMENTS, OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION,
THE WATER, SOIL, AND GEOLOGY, OR THE PRESENCE OR ABSENCE OF ANY POLLUTANT,
HAZARDOUS WASTE, GAS OR SUBSTANCE OR SOLID WASTE ON OR ABOUT THE PROPERTY, (B) THE
INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE
PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH BHFS MAY INTEND TO
CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL AUTHORITY
OR BODY HAVING JURISDICTION INCLUDING, WITHOUT LIMITATION, ALL APPLICABLE
ZONING LAWS, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER RELATED TO OR
CONCERNING THE PROPERTY, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1 OF
THIS SUPPLEMENT. BHFS ACKNOWLEDGES THAT TRANSFEREE, HAVING BEEN GIVEN THE
OPPORTUNITY TO INSPECT THE PROPERTY, IS RELYING SOLELY ON ITS OWN INVESTIGATION
OF THE PROPERTY AND NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY OR ON
BEHALF OF TRANSFEROR OR ANY


 


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STATEMENT,
REPRESENTATION OR OTHER ASSERTION MADE BY TRANSFEROR WITH RESPECT TO THE
PROPERTY, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 5.1 OF THIS
SUPPLEMENT. TRANSFEREE FURTHER ACKNOWLEDGES THAT NO INDEPENDENT INVESTIGATION
OR VERIFICATION HAS BEEN OR WILL BE MADE BY TRANSFEROR WITH RESPECT TO ANY
INFORMATION SUPPLIED BY THIRD PARTIES ON BEHALF OF TRANSFEROR CONCERNING THE
PROPERTY, AND TRANSFEROR MAKES NO REPRESENTATION AS TO THE ACCURACY OR
COMPLETENESS OF SUCH INFORMATION, IT BEING INTENDED BY THE PARTIES THAT BHFS
SHALL VERIFY THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION ITSELF. TRANSFEREE
ACKNOWLEDGES THAT THE DISCLAIMERS, AGREEMENTS AND OTHER STATEMENTS SET FORTH IN
THIS SECTION 10.1 ARE AN INTEGRAL PORTION OF THIS SUPPLEMENT AND THAT
TRANSFEROR WOULD NOT AGREE TO CONTRIBUTE AND CONVEY THE PROPERTY TO BHFS FOR
THE CONSIDERATION SET FORTH IN SECTION 1.4 WITHOUT THE DISCLAIMERS,
AGREEMENTS AND OTHER STATEMENTS SET FORTH IN THIS SECTION 10.1.


 


10.2         Assignment.
Transferee shall not have the right to assign its rights under this Supplement
without the consent of Transferor provided that Transferor acknowledges that
Transferee intends that the Property shall be conveyed directly to its
subsidiary and Transferor hereby agrees to do so at Transferee’s request.


 


10.3         Title
Policy or Abstract. The Texas Real Estate License Act requires written
notice to Transferee that it should have an attorney examine an abstract of title
to the property being purchased or obtain a title insurance policy. Notice to
that effect is, therefore, hereby given to Transferee.


 


10.4         Notices.
Any notice pursuant to this Supplement shall be given in writing by (a) personal
delivery, or (b) expedited delivery service with proof of delivery, or (c) United
States Mail, postage prepaid, registered or certified mail, return receipt
requested, or (d) facsimile (provided that such facsimile is confirmed by
expedited delivery service or by mail in the manner previously described), sent
to the intended addressee at the address set forth below, or to such other
address or to the attention of such other person as the addressee shall have
designated by written notice sent in accordance herewith, and shall be deemed
to have been given either at the time of personal delivery, or, in the case of
expedited delivery service or mail, as of the date of first attempted delivery
at the address and in the manner provided herein, or, in the case of facsimile
upon receipt. Unless changed in accordance with the preceding sentence, the
addresses for notices given pursuant to this Supplement shall be as follows:


 


If to Transferor:                    c/o Fairways Frisco, L.P.

16250 Dallas Parkway, Suite 102

Dallas, Texas 75248

Attn: Cathy Sweeney

Fax No. (972) 250-1645


 


with a copy to:                      Fairways Frisco, L.P.

16250 Dallas Parkway, Suite 102

Dallas, Texas 75248

Attn: Jim Leslie

Fax No. (972) 250-1343


 


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with a copy to:                      Winstead P.C.

5400 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270

Attn: Tom Helfand, Esq.

Fax No. (214) 745-5390


 


If to Transferee:                    Behringer Harvard Frisco Square LP

15601 Dallas Parkway, Suite 600

Addison, Texas 75001

Attention: Joe Jernigan

Fax No. (214) 655-1610


 


with a copy to:                      Powell Coleman & Arnold LLP

8080 N. Central Expressway, Suite 1380

Dallas, Texas 75206

Attention: Carol Satterfield

Fax No. (214) 373-8768


 


10.5         Calculation
of Time Periods. Unless otherwise specified, in computing any period of
time described in this Supplement, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period so computed is to be included, unless such last day is a
Saturday, Sunday or legal holiday under the laws of the State of Texas, in
which event the period shall run until the end of the next day which is neither
a Saturday, Sunday or legal holiday.


 


10.6         Time
of Essence. Transferor and Transferee agree that time is of the essence of
this Supplement.


 


10.7         Successors
and Assigns. The terms and provisions of this Supplement are to apply to
and bind the permitted successors and assigns of the parties hereto.


 


10.8         Entire
Agreement. This Supplement, including the Exhibits and Schedules, contains
the entire agreement between the parties pertaining to the subject matter
hereof and fully supersedes all prior agreements and understandings between the
parties pertaining to such subject matter.


 


10.9         Further
Assurances. Each party agrees that it will without further consideration
execute and deliver such other documents and take such other action, whether
prior or subsequent to Closing, as may be reasonably requested by the
other party to consummate more effectively the purposes or subject matter of
this Supplement.


 


10.10       Attorneys’
Fees. In the event of any controversy, claim or dispute between the parties
affecting or relating to the subject matter or performance of this Supplement,
the prevailing party shall be entitled to recover from the nonprevailing party
all of its reasonable expenses, including reasonable attorneys’ fees.


 


10.11       Counterparts.
This Supplement may be executed in several counterparts, and all such
executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this
Supplement.


 


10.12       Severability.
If any provision of this Supplement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Supplement
shall nonetheless remain in full


 


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force and effect.


 


10.13       Applicable
Law. THIS SUPPLEMENT IS PERFORMABLE IN COLLIN COUNTY, TEXAS, AND SHALL IN
ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE
FEDERAL LAWS OF THE UNITED STATES AND THE LAWS OF THE STATE OF TEXAS. TRANSFEROR
AND TRANSFEREE HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN COLLIN COUNTY, TEXAS, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS SUPPLEMENT AND HEREBY IRREVOCABLY AGREE THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND
DETERMINED IN A STATE OR FEDERAL COURT SITTING IN COLLIN COUNTY, TEXAS. TRANSFEROR
AND TRANSFEREE AGREE THAT THE PROVISIONS OF THIS SECTION SHALL SURVIVE THE
CLOSING OF THE TRANSACTION CONTEMPLATED BY THIS SUPPLEMENT.


 


10.14       No
Third Party Beneficiary. The provisions of this Supplement and of the
documents to be executed and delivered at Closing are and will be for the
benefit of Transferor and Transferee only and are not for the benefit of any
third party, and accordingly, no third party shall have the right to enforce
the provisions of this Supplement or of the documents to be executed and
delivered at Closing.


 


10.15       Exhibits.
The following schedules or exhibits attached hereto shall be deemed to be an
integral part of this Supplement:


 


(a)           Exhibit A                Permitted
Exceptions


 


(b)           Exhibit B                Surveyor’s
Certification


 


(c)           Exhibit C                Form of Bill
of Sale and Assignment


 


(d)           Exhibit D                FIRPTA Affidavit


 


10.16       Captions.
The section headings appearing in this Supplement are for convenience of
reference only and are not intended, to any extent and for any purpose, to
limit or define the text of any section or any subsection hereof.


 


10.17       Construction.
The parties acknowledge that the parties and their counsel have reviewed and
revised this Supplement and that the normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of this Supplement or any exhibits or
amendments hereto.


 


10

















 


IN
WITNESS WHEREOF, the parties hereto have duly executed this Supplement to be
effective as of the Effective Date.


 


	
   

  	
  TRANSFEROR:

  
	
   

  	
   

  
	
   

  	
  FRISCO
  SQUARE B1-6, F1-11, LTD.,

  
	
   

  	
  a Texas
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fairways FS
  B1-6, F1-11, LLC,

  
	
   

  	
   

  	
  a Texas
  limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ James C.
  Leslie

  	
   

  
	
   

  	
   

  	
   

  	
  James C.
  Leslie, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated: August 1,
  2007

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  TRANSFEREE:

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD FRISCO
  SQUARE LP,

  
	
   

  	
  a Delaware limited
  partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Dated:                    ,
  2007

  



 





















 


EXHIBIT A


 


PERMITTED EXCEPTIONS


 


1.               Restrictive
Covenants recorded in/under CC# 00-81365 (4721/2665), CC# 20070220000229050,
CC# 20070419000530110, CC# 05-63817 (5918/3391), CC# 05-131828 (6005/2947), CC#
20060321000366760, Resolution No. 07-05-99R
recorded under CC# 20070625000861640, Land Records, Collin County, Texas of the Real Property Records of COLLIN
County, Texas, but omitting any covenant or restriction based on race, color,
religion, sex, handicap, familial status, or national origin.


 


2.            Restrictive Covenants recorded in/under
Volume P, Page 724 of the Map and Plat Records of COLLIN County, Texas,
but omitting any covenant or restriction based on race, color, religion, sex,
handicap, familial status, or national origin.


 


3.              Standby fees, taxes and assessments by
any taxing authority for the year 2007,
and subsequent years.


 


4.             With
respect to Tract 1 (Lot F1-9, Block
F-1):


 


The following, all according to plat recorded in Volume P, Page 724,
of the Map and Plat Records of COLLIN County, Texas:


 


24 foot fire lane, access, drainage, and
utility easement crossing through the Northern and Southern portions of the
property, as shown on survey by Dana Brown R.P.L.S. No. 5336, dated July 28,
2007.


 


5.5 X 10 foot water easement in the most
Westerly Southwest corner of subject property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


10 foot utility easement in the most
Southerly Southwest corner of subject property, as shown on survey by Dana
Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


5 foot private utility easement in the most Westerly
Southwest portion of subject property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


Variable width drainage and water easement
and variable width drainage and private utility easement across the South
property line of Lot F1-11, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


Variable width private utility easement along
the most Westerly South property line, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


10 X 10 foot water easement along the south
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Southern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


12 foot reducing to a 1.50 foot utility
easement along the line of the 24 foot fire lane, access, drainage, and utility
easement crossing through the Southern portion of the property, as shown on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


Drainage and utility easement along the North
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Southern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


1

















 


20 foot fire lane, access, drainage, and
utility easement along the most Easterly West property line, as shown on survey
by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


3 X 10 foot utility easement along the most
easterly West property line, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


5.5 X 5 foot water easement along the South
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


5 X 12 foot drainage easement along the South
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


15 foot utility easement along the South line
of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


15 X 35 foot drainage easement along the
South line of the 12 foot utility easement, which runs along the South line of
the 24 foot fire lane, access, drainage, and utility easement crossing through
the Northern portion of the property, as shown on survey by Dana Brown R.P.L.S.
No. 5336, dated July 28, 2007.


 


12 foot which reduces to a 1.50 foot utility
easement and 15 foot utility easement along the South line of the 24 foot fire
lane, access, drainage, and utility easement crossing through the Northern
portion of the property, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


Drainage and water easement along the North
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


Variable width utility easement along the
North line of the 24 foot fire lane, access, drainage, and utility easement
crossing through the Northern portion of the property, as shown on survey by
Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


10 X 10 foot water easement along the North
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


15 foot utility and water easement along the
most Northerly East property line, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


15 foot utility easement along the most
northerly West property line, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


Encroachment of covered parking along the west property line as shown
on survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


Light poles, signs, gas riser and electric transformer as shown on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


2

















 


5.             With respect to Tract 2 (Lot B1-10, Block B-1):


 


The following, all according to plat recorded in Volume P, Page 724,
of the Map and Plat Records of COLLIN County, Texas:


 


24 foot fire lane, access, drainage, and
utility easement crossing through the Northern and Southern portions of the
property, as shown on survey by Dana Brown R.P.L.S. No. 5336, dated July 28,
2007.


 


5.5 X 10 foot water easement in the most
Easterly Southeast corner of subject property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


10 foot utility easement in the most
Southerly Southeast corner of subject property, as shown on survey by Dana
Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


5 foot private utility easement in the most
Southerly Southeast corner of subject property, as shown on survey by Dana
Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


Variable width private utility easement
traversing the most Easterly South portion of the property, as shown on survey
by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


10 X 10 foot water easement along the south
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Southern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


15 foot utility easement along the north line
of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Southern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


20 foot fire lane, access, drainage, and
utility easement along the most East property line, as shown on survey by Dana
Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


Water easement along the South line of the 24
foot fire lane, access, drainage, and utility easement crossing through the
Northern portion of the property, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


15 foot utility easement along the East line
of the 20 foot fire lane, access, drainage, and utility easement, as shown on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


2.5 foot utility easements along the south
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


12 foot, variable width and 15 X 15 foot
utility easements along the South line of the 24 foot fire lane, access,
drainage, and utility easement crossing through the Northern portion of the
property, as shown on survey by Dana Brown R.P.L.S. No. 5336, dated July 28,
2007.


 


15 foot utility easement along the most
Northerly West property line, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


Drainage, utility and water easement along
the most northerly East property line, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


3

















 


Private utility easement along the North
property line, as shown on survey by Dana Brown R.P.L.S. No. 5336, dated July 28,
2007.


 


10 X 10 foot water easement in the Northwest
corner of subject property, as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


5 X 12 foot drainage easement along the South
line of the 24 foot fire lane, access, drainage, and utility easement crossing
through the Northern portion of the property, as shown on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


5 foot water easement along the North line of
the 24 foot fire lane, access, drainage, and utility easement crossing through
the Northern portion of the property, as shown on survey by Dana Brown R.P.L.S.
No. 5336, dated July 28, 2007.


 


Light poles and signs as shown on survey by Dana Brown R.P.L.S. No. 5336,
dated July 28, 2007.


 


Covered parking encroachment along the East property line as shown on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


Rights or claims, if any, of adjoining property owner(s) in and to that
portion of insured property lying between the fence and the East property line,
as shown on survey by Dana Brown R.P.L.S. No. 5336, dated July 28,
2007.


 


6.             Terms, conditions and stipulations contained
in Agreement executed by and between City of Frisco, and F.M. 720-Tollway,
Ltd., dated January 6, 1994, filed May 19, 1994, recorded in/under
CC# 94-48747 of the Real Property Records of COLLIN County, Texas, as noted on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


7.             Terms, conditions and stipulations contained
in Agreement executed by and between Newman Real Estate, Inc. Don Crowell,
Rebecca Crowell, Ann Osgood, and HRC Ranch, Ltd, dated August 20, 1997,
filed November 17, 1997, recorded in/under CC# 97-97982 (4042/524) of the
Real Property Records of COLLIN County, Texas, as noted on survey by Dana Brown
R.P.L.S. No. 5336, dated July 28, 2007.


 


8.            Reservation of One-half (1/2) of all of the
minerals in Deed executed by John W. Andrews, trustee, to Tomlin Investments, Inc.,
dated August 31, 1981, filed September 2, 1981, recorded in/under
Volume 1426, Page 14 of the Real Property Records of COLLIN County, Texas.
Title to said interest not checked subsequent to date of aforesaid instrument.


 


9.              Covenants, conditions, obligations,
restrictions, easements, charges and liens as set forth in that certain
Declaration recorded in/under CC# 00-81365 (4721/2665) and CC# 05-63817
(5918/3391) of the Real Property Records of COLLIN County, Texas, as noted on
survey by Dana Brown R.P.L.S. No. 5336, dated July 28, 2007.


 


4