Exhibit 10.11


 


REAFFIRMATION,
CONSENT TO TRANSFER,

SUBSTITUTION OF INDEMNITOR AND MODIFICATION OF LOAN DOCUMENTS


 


THIS REAFFIRMATION, CONSENT TO TRANSFER, SUBSTITUTION OF INDEMNITOR AND
MODIFICATION OF LOAN DOCUMENTS (this “Agreement”)  is made and entered into as of November 1,
2007, by and among the following parties:


 


A.                                   200 SOUTH WACKER PROPERTY LLC, a Delaware limited
liability company having an address prior to the date hereof of c/o Beacon
Capital Partners, LLC, 200 State Street, 5th Floor, Boston, Massachusetts
02109, and having an address on and after the date hereof of c/o Behringer
Harvard Operating Partnership I LP, 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001 (“Borrower”);


 


B.                                     BEACON CAPITAL STRATEGIC PARTNERS IV, L.P., a
Delaware limited partnership having an address c/o Beacon Capital Partners,
LLC, 200 State Street, 5th Floor, Boston, Massachusetts 02109 (“Original Indemnitor”);


 


C.                                     BCSP IV U.S. INVESTMENTS, L.P., a Delaware limited
partnership having an address c/o Beacon Capital Partners, LLC, 200 State
Street, 5th Floor, Boston, Massachusetts 02109 (“Seller”);


 


D.                                    BEHRINGER HARVARD 200 SOUTH WACKER DRIVE, LLC, a
Delaware limited liability company having an address of 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001 (“Purchaser”);


 


E.                                      BEHRINGER HARVARD REIT I, INC., a Maryland
corporation having an address of 15601 Dallas Parkway, Suite 600, Addison,
Texas 75001 (“Substitute Indemnitor”);


 


(Purchaser and Substitute Indemnitor are sometimes hereinafter
collectively referred to as “Substitute Obligors”);


 


F.                                      LASALLE BANK
NATIONAL ASSOCIATION as Trustee under that certain Pooling and Servicing
Agreement dated as of March 13, 2006 (the “PSA”),
for the Registered Holders of LB-UBS Commercial Mortgage Trust 2006-C3,
Commercial Mortgage Pass-Through Certificates, Series 2006-C3, whose mailing address is c/o Wachovia Bank, National
Association, Wachovia Securities, Commercial Real Estate Services, 8739
Research Drive-URP4, Charlotte, North Carolina 28288-1075 (28262-1075 for overnight deliveries), Attn:
Portfolio Manager (“Lender”).


 


RECITALS


 


1.                                       LEHMAN
BROTHERS BANK FSB, a federal stock savings bank (“Original Lender”),  pursuant to the Loan
Documents (as defined below) made a loan to Borrower in the original principal
amount of $95,500,000.00 (the “Loan”).  The Loan is evidenced and secured by the following
documents executed in favor of Original Lender by Borrower and/or Original
Indemnitor (as applicable):


 





















 


a.                                       Promissory Note dated January 30,
2006, payable by Borrower to Original Lender in the original principal amount
of $95,500,000.00 (the “Note”);


 


b.                                      Mortgage, Assignment of Leases and
Rents and Security Agreement of even date with the Note, granted by Borrower to
Original Lender, recorded as Document No. 0603119064 in the real estate
records of Cook County, Illinois (the “Recorder’s Office”)
(the “Mortgage”);


 


c.                                       Assignment
of Leases and Rents of even date with the Note, granted by Borrower to Original
Lender, recorded as Document No. 0603119065
in the Recorder’s Office;


 


d.                                      UCC-1 Financing Statements with
Borrower as debtor and Original Lender as secured party, recorded as Document No. 0603416035
in the Recorder’s Office and filed as File No. 60381731 with the Delaware
Secretary of State;


 


e.                                       Guaranty of Recourse Obligations of
even date with the Note, granted by Original Indemnitor to Original Lender (the
“Indemnity Agreement”);


 


f.                                         Environmental Indemnity Agreement
of even date with the Note, granted by Borrower and Original Indemnitor to
Original Lender (the “Environmental Indemnity
Agreement”);


 


g.                                      Loan
Agreement of even date with the Note, by and between Borrower and Original
Lender (the “Loan Agreement”); and


 


h.                                      Cash
Management Agreement of even date with the Note, by and among Borrower,
Original Lender, Wachovia Bank, National Association and BCSP IV Illinois
Property Manager LLC (the “Cash Management Agreement”).


 


The foregoing documents, together with any and all other documents
executed by Borrower or Original Indemnitor in connection with the Loan, are
collectively referred to as the “Loan Documents.”


 


2.                                       Original
Lender assigned, sold and transferred its interest in the Loan and the Loan
Documents to Lender and Lender is the current holder of all of Original Lender’s
interest in the Loan and the Loan Documents.


 


3.                                       Borrower
continues to be the owner of fee title to the real property and improvements
located thereon and continues to be the owner of all of the property as
described in and encumbered by the Mortgage and the Loan Documents (the “Property”).


 


4.                                       Pursuant
to that certain Stock Purchase and Sale Agreement dated as of August 15, 2007, by and between Seller and
Behringer Harvard Operating Partnership I LP (as assigned to Purchaser and
certain affiliates, and as the same may be amended from time to time, the “Purchase Agreement”), Seller
agreed to transfer and sell, and Purchaser agreed to purchase, all of Seller’s
ownership interest in BCSP IV Illinois Properties Business Trust, a Maryland
business trust (“Original Principal”), the
sole member of Borrower (representing, after the redemption of the holders of
the preferred stock of Original Principal, 100% of the ownership interests in
Original


 


2





















 


Principal)
(the “Transferred Ownership Interests”)
(the transfer contemplated in this Recital 4 is hereinafter referred to as the “Transfer”).


 


5.                                       The
parties acknowledge and agree that Section 4.2.1 and Article VIII of
the Loan Agreement require the consent of Lender for the Transfer. Borrower,
Original Indemnitor and Substitute Obligors have requested that Lender consent
to the Transfer subject to conditions contained in the Loan Agreement, the Loan
Documents and this Agreement.


 


6.                                       Borrower,
Original Indemnitor and Substitute Obligors have also requested that Lender
consent to the substitution of Substitute Indemnitor as “Indemnitor” and “Guarantor”
under the Indemnity Agreement and the Environmental Indemnity Agreement and to
the assumption by Substitute Indemnitor of all the obligations of Original
Indemnitor under the Indemnity Agreement and the Environmental Indemnity
Agreement (the “Substitution”).


 


7.                                       Substitute
Obligors have requested that Lender consent to the merger of Original Principal
into Purchaser (the “Merger”).


 


8.                                       The
Transfer, the Substitution and the Merger are collectively referred to as the “Transaction.”


 


9.                                       The
Transfer, the Substitution and the Merger shall occur simultaneously on the
date hereof.


 


10.                                 Lender
is willing to consent to the Transaction on and subject to the terms and
conditions set forth in this Agreement, in the Loan Agreement and in the Loan
Documents.


 


STATEMENT OF
AGREEMENT


 


In consideration of the mutual covenants and agreements set forth
herein, the parties hereto hereby agree as follows:


 


1.                                       Certain
Representations, Warranties and Covenants Regarding the Transfer.


 


a.                                       Seller
hereby represents and warrants to Lender that it is the owner of the
Transferred Ownership Interests, that the Transferred Ownership Interests are
unencumbered, that contemporaneously with the execution and delivery hereof,
the Transferred Ownership Interests are being conveyed and transferred to
Purchaser, and that Seller is not obtaining or retaining any security interest
or other interest in the Transferred Ownership Interests.


 


b.                                      Purchaser
hereby represents and warrants to Lender, as of the date hereof, that
simultaneously with the execution and delivery hereof, Purchaser has purchased
from Seller all of the Transferred Ownership Interests, and that Purchaser has
not conveyed or granted Seller or any other party any security interest or
other interest in the Transferred Ownership Interests.


 


c.                                       Borrower
hereby represents and warrants to Lender that the organizational documents of
Borrower, as delivered to Original Lender in connection with the closing of the
Loan (the “Borrower Organizational Documents”),
have not been modified, amended, altered or changed since the date of the
closing of the Loan and prior to the date hereof.


 


3





















 


d.                                      Borrower
and Purchaser each hereby represent and warrant to Lender that, other than the
substitution of Purchaser as the sole member of Borrower by virtue of the
Merger and the substitution of Purchaser as the Manager of Borrower, the
Transaction will not result in any modification, amendment, alteration or
change to the Borrower Organizational Documents except as set forth in the
First Amendment to the First Amended and Restated Limited Liability Company
Agreement of even date with this Agreement. Purchaser hereby covenants and
agrees that it will be bound by the provisions of the Borrower Organizational
Documents, as amended. Borrower and Purchaser covenant and agree that Borrower
will remain a bankruptcy remote, special purpose entity throughout the term of
the Loan in accordance with the terms of the Loan Documents.


 


2.                                       Representations,
Warranties and Covenants of Borrower.


 


a.                                       Borrower
hereby represents and warrants to Lender, as of the date hereof, that:


 


i.                                          the
Mortgage is a valid first lien on the Property for the full unpaid principal amount
of the Loan and all other amounts as stated therein;


 


ii.                                       to
its knowledge, there is no Event of Default (as defined in the Loan Agreement)
under the provisions of the Note, the Mortgage, the Loan Agreement, the
Indemnity Agreement, the Environmental Indemnity Agreement or the other Loan
Documents;


 


iii.                                    to
its knowledge, there are no defenses, set-offs or rights of defense, set-off or
counterclaim whether legal, equitable or otherwise to the obligations evidenced
by or set forth in the Note, the Mortgage, the Loan Agreement, the Indemnity
Agreement, the Environmental Indemnity Agreement or the other Loan Documents;


 


iv.                                   all
provisions of the Note, the Mortgage, the Loan Agreement, the Indemnity
Agreement, the Environmental Indemnity Agreement and the other Loan Documents
are in full force and effect, except as modified herein; and


 


v.                                      except
as permitted by the Loan Documents, there are no subordinate liens of any kind
covering or relating to the Property, nor are there any mechanics’ liens or
liens for unpaid taxes or assessments encumbering the Property, nor has notice
of a lien or notice of intent to file a lien been received.


 


b.                                      Borrower
understands and intends that Lender shall rely on the representations,
warranties and covenants contained herein.


 


3.                                       Representations,
Warranties and Covenants of Original Indemnitor.  


 


a.                                       Original
Indemnitor hereby represents and warrants to Lender, as of the date hereof,
that:


 


i.                                          to
its knowledge, there is no Event of Default (as defined in the Loan Agreement)
under the provisions of the Indemnity Agreement or the Environmental Indemnity
Agreement;


 


4





















 


ii.                                       to
its knowledge, there are no defenses, set-offs or rights of defense, set-off or
counterclaim whether legal, equitable or otherwise to the obligations evidenced
by or set forth in the Indemnity Agreement or the Environmental Indemnity
Agreement; and


 


iii.                                    all
provisions of the Indemnity Agreement and the Environmental Indemnity Agreement
are in full force and effect, except as modified herein.


 


b.                                      Original
Indemnitor hereby covenants and agrees that from and after the date hereof,
Lender may deal solely with Borrower (as newly constituted) and Substitute
Obligors in all matters relating to the Loan, the Loan Documents and the
Property, and that Lender has no further duty or obligation of any nature
relating to the Loan or the Loan Documents to Original Indemnitor.


 


c.                                       Original
Indemnitor understands and intends that Lender shall rely on the
representations, warranties and covenants contained in this Section 3.


 


4.                                       Covenants
of Borrower and Substitute Obligors.


 


a.                                       Borrower
and Substitute Obligors, as applicable, hereby covenant as follows:


 


i.                                          Borrower
shall perform all the respective past, present and future obligations contained
in the other Loan Documents in accordance with the terms of this Agreement;


 


ii.                                       Substitute
Indemnitor shall perform all the respective present and future obligations
contained in the Indemnity Agreement;


 


iii.                                    Borrower
and Substitute Indemnitor shall perform all the respective past, present and
future obligations under the Environmental Indemnity Agreement;


 


iv.                                   Borrower
shall continue to pay when and as due all sums due under the Note and the Loan
Documents, as modified hereby;


 


v.                                      Borrower
and Substitute Indemnitor, as applicable, shall perform all the respective
obligations imposed under the Note, the Mortgage, the Indemnity Agreement, the
Environmental Indemnity Agreement and the Loan Documents, all as modified
hereby;


 


vi.                                   Borrower
shall not hereafter, without Lender’s prior consent in accordance with the
terms of the Loan Documents, further encumber the Property or sell or transfer
the Property or any interest therein, except as may be specifically permitted
in the other Loan Documents or in this Agreement;


 


b.                                      Substitute
Obligors understand and intend that Lender shall rely on the covenants
contained herein.


 


5





















 


5.                                       Consent
and Reaffirmation of Borrower.


 


a.                                       Borrower
hereby represents and warrants to Lender that it has reviewed the Purchase
Agreement, this Agreement and all the documents executed in accordance
therewith or herewith. Borrower consents to the Transaction under the terms of
the Purchase Agreement and this Agreement. Borrower further covenants and
agrees that the Transaction shall not, and shall not be deemed to, impair,
limit, abrogate or reduce in any manner or to any extent the liability or
obligations of Borrower under the Loan Documents, except as modified herein.


 


b.                                      Borrower
hereby renews, reaffirms, ratifies and confirms the Note, the Mortgage and the
other Loan Documents and acknowledges and agrees that the Loan Documents remain
in full force and effect without impairment and without modification, except as
specifically provided in this Agreement, and that no rights or remedies of
Lender under the Loan Documents have been waived.


 


c.                                       Borrower
hereby acknowledges, agrees and warrants that all rights, priorities, titles,
liens and equities securing the payment of the Note are expressly recognized as
valid and are in all things renewed, continued and preserved in force to secure
payment of the Note, except as amended herein.


 


6.                                       Obligations
of Substitute Indemnitor.


 


a.                                       Substitute
Indemnitor shall be obligated and responsible for the performance of each and
all of the obligations and agreements of Original Indemnitor under the
Environmental Indemnity Agreement, and Substitute Indemnitor shall be liable
and responsible for each and all of the liabilities of Original Indemnitor thereunder,
as fully and completely as if Substitute Indemnitor had originally executed and
delivered the Environmental Indemnity Agreement as the “Indemnitor” or “Guarantor”
thereunder including, without limitation, all of those obligations, agreements
and liabilities which would have, but for the provisions of this Agreement,
been the obligations, agreements and liabilities of Original Indemnitor.
Substitute Indemnitor hereby agrees to pay, perform and discharge each and
every obligation of payment and performance of Original Indemnitor under,
pursuant to and as set forth in the Environmental Indemnity Agreement at the
time, in the manner and otherwise in all respects as therein provided.


 


b.                                      From
and after the date of this Agreement, Substitute Indemnitor shall be obligated
and responsible for the performance of each and all of the obligations and
agreements of Original Indemnitor under the Indemnity Agreement, and Substitute
Indemnitor shall be liable and responsible for each and all of the liabilities
of Original Indemnitor thereunder, as fully and completely as if Substitute
Indemnitor had originally executed and delivered the Indemnity Agreement as the
“Indemnitor” or “Guarantor” thereunder including, without limitation, all of
those obligations, agreements and liabilities which would have, but for the
provisions of this Agreement, been the obligations, agreements and liabilities
of Original Indemnitor. From and after the date hereof, Substitute Indemnitor
further agrees to abide by and be bound by all of the terms of the Indemnity
Agreement having reference to Original Indemnitor, all as though each of the
Indemnity Agreement had been made, executed and delivered by Substitute
Indemnitor as Original Indemnitor. From and after the date hereof, Substitute Indemnitor
hereby agrees to pay, perform and discharge each and every obligation of
payment and performance of Original Indemnitor


 


6

















 


under,
pursuant to and as set forth in the Indemnity Agreement at the time, in the
manner and otherwise in all respects as therein provided to the extent first
arising or accruing on or after the date of this Agreement.


 


Substitute Indemnitor acknowledges and agrees that, following the
Transfer, it will be an affiliate of Borrower and will derive substantial
economic benefit from Lender’s agreement to consent to the Transfer and that
there is adequate consideration for the Substitution. Substitute Indemnitor
acknowledges that Lender would not consent to the Transfer without the agreement
of Substitute Indemnitor to execute and deliver this Agreement as substitute
indemnitor.


 


7.                                       Consent
to Transfer.  Subject to the
terms and conditions set forth in this Agreement, Lender consents to the
Transfer, subject to the Loan Agreement and the Loan Documents. Lender’s
consent to the Transfer shall, however, not constitute its consent to any
subsequent transfers of the Property or any interest therein (as defined in the
Loan Agreement).


 


8.                                       Lender
Estoppel. Lender hereby represents and warrants to Borrower, Original
Indemnitor and Substitute Obligors that, to the “actual knowledge of Lender”:


 


a.                                       as
of the date hereof, no default or Event of Default under the Loan Documents has
occurred and is continuing, and


 


b.                                      no
facts or circumstances exist which with the giving of notice and/or the passage
of time would constitute an Event of Default.


 


For purposes of this paragraph, the “actual knowledge of Lender” shall
mean the actual knowledge of employees of Wachovia Bank National Association (“Wachovia”) actively
involved with the transactions described herein or with the servicing of the
Loan without any independent inquiry or investigation. The “actual knowledge of
Lender” shall not include knowledge imputed from other Lender Parties (as
defined below)or other groups or employees of Wachovia not actively involved in
the servicing of the Loan. Lender reserves the right to declare any existing
default or Event of Default which is not currently known but which subsequently
comes to the attention of Lender.


 


9.                                       Consent
to Substitution and Release of Original Indemnitor. Subject to the terms
and conditions set forth in this Agreement, Lender consents to the
Substitution. From and after the date of this Agreement, Original Indemnitor
shall, with respect only to those matters first arising or accruing on or after
the date of this Agreement, be (and is hereby) fully released of its liability
under the Indemnity Agreement. Original Indemnitor shall be (and is hereby)
fully released of its liability under the Environmental Indemnity Agreement.
Substitute Indemnitor shall be substituted, in each and every respect, for
Original Indemnitor in lieu of and in place of Original Indemnitor with respect
to each and every reference to the “Indemnitor” or “Guarantor” in the Loan
Documents including, without limitation, the Indemnity Agreement and
Environmental Indemnity Agreement. Original Indemnitor hereby acknowledges and
agrees that the release set forth in this Section shall not be construed
to release Original Indemnitor from any liability under the Indemnity Agreement
for any acts or events occurring or obligations arising prior to the date of
this Agreement, whether or not such acts, events or obligations are, as of the
date of this Agreement, known or ascertainable.


 


7

















 


10.                                 Consent
to Merger. Subject to the terms and conditions set forth in this Agreement,
and subject to the Loan Agreement and the Loan Documents, Lender consents to
the Merger. Lender’s consent to the Merger shall not, however, constitute its
consent to any subsequent mergers.


 


11.                                 Notices
to Borrower and Indemnitor. Without amending, modifying or otherwise
affecting the provisions of the Loan Documents except as expressly set forth
herein, Lender shall, from and after the date of this Agreement, deliver any
notices to the “Borrower”, “Indemnitor” or “Guarantor” which are required to be
delivered pursuant to the Loan Documents, or are otherwise delivered by Lender
at Lender’s sole discretion, to Borrower’s address or Substitute Indemnitor’s
address set forth above, as applicable. In addition, all references to the
address of the “Borrower” and all references to the address of the “Indemnitor”
or “Guarantor” in the Loan Documents are hereby modified to refer to Borrower’s
address or Substitute Indemnitor’s address set forth above, as applicable.


 


12.                                 Release
and Covenant Not to Sue. Borrower and Original Indemnitor, on behalf of
themselves and their heirs, successors and assigns, hereby release and forever
discharge Lender, Original Lender, each of their respective predecessors in
interest and successors and assigns, together with any officers, directors,
partners, employees, investors, certificate holders and agents (including,
without limitation, servicers of the Loan) of each of the foregoing
(collectively, “Lender Parties”), from all
debts, accountings, bonds, warranties, representations, covenants, promises,
contracts, controversies, agreements, claims, damages, judgments, executions,
actions, inactions, liabilities, demands or causes of action of any nature, at
law or in equity, known or unknown (the “Claims”),
which Borrower or Original Indemnitor now has by reason of any cause, matter or
thing through and including the date hereof arising out of or relating to: (a) the
Loan including, without limitation, its funding, administration and servicing; (b) the
Loan Documents; (c) the Property; (d) any reserve or escrow balances
held by Lender or any servicers of the Loan; and (e) the Transaction.
Borrower and Original Indemnitor, on behalf of themselves and their heirs,
successors and assigns, covenant and agree never to institute or cause to be
instituted or continue prosecution of any suit or other form of action or
proceeding of any kind or nature whatsoever against any of Lender Parties by
reason of or in connection with any of the foregoing matters, claims or causes
of action. Notwithstanding the foregoing, in the event Lender or any of the
other Lender Parties shall make any Claim against Borrower and/or Original
Indemnitor with respect to any occurrence, matter, circumstance, or set of
facts from which Lender Parties would be otherwise released pursuant to this Section 12,
this Section 12 shall not prevent Borrower and/or Original Indemnitor, as
applicable, from asserting any defense, affirmative defense, claim and/or
counterclaim against the applicable Lender Parties arising from the same
occurrence, matter, circumstance, or set of facts.


 


13.                                 Acknowledgment
of Indebtedness. This Agreement recognizes the reduction of the principal
amount of the Note and the payment of interest thereon to the extent of
payments made by Borrower prior to the date of this Agreement. The parties
acknowledge and agree that, as of the date of this Agreement, the unpaid
principal balance of the Note is $95,500,000.00 and interest on the Note is
paid through and including October 10, 2007. Borrower and Substitute
Indemnitor acknowledge and agree that the Loan, as evidenced and secured by the
Loan Documents, is a valid


 


8





















 


and existing
indebtedness payable by Borrower to Lender. The parties acknowledge that Lender
is holding the following escrow or reserve balances:


 


	
  Unfunded Tenant
  Allowance Funds:

  	
  $597,610.09

  



 


The parties acknowledge and agree that Lender shall continue to hold
the escrow and reserve balances for the benefit of Borrower in accordance with
the terms of the Loan Documents. Original Indemnitor covenants and agrees that
Lender Parties have no further duty or obligation of any nature to Original
Indemnitor relating to such escrow or reserve balances. Original Indemnitor
hereby releases and forever discharges Lender Parties from any obligations to
Original Indemnitor relating to such escrow or reserve balances. Borrower and
Substitute Indemnitor acknowledge and agree that the funds listed above
constitute all of the reserve and escrow funds currently held by Lender with
respect to the Loan and authorize Lender to continue to hold such funds in an
account controlled by Lender for the benefit of Lender and Borrower in
accordance with the terms and conditions of the Loan Documents.


 


14.                                 Termination
of Limited Guaranty. Lender hereby acknowledges and agrees that the
Principal Liability Cap under (and as defined in) that certain Limited Guaranty
dated January 30, 2006 executed by Original Indemnitor in favor of
Original Lender has been reduced to zero and that said Limited Guaranty has
therefore terminated and shall be of no further force or effect and that
Original Indemnitor is hereby released from its obligations thereunder.


 


15.                                 Interest
Accrual Rate and Monthly Installment Payment Amount to Remain the Same. The
parties acknowledge and agree that the interest rate and the monthly payments
set forth in the Note shall remain unchanged. Prior to the occurrence of an
Event of Default hereunder or under the Loan Documents, interest shall accrue
on the principal balance outstanding from time to time at the interest rate set
forth in the Note (which does not include such amounts as may be required to
fund the escrow and reserve obligations under the terms of the Loan Documents),
and shall continue to be paid in accordance with the terms of the Note.


 


16.                                 Modifications
of the Loan Documents.


 


a.                                       Section 8.2(b) of
the Loan Agreement is hereby deleted in its entirety and restated as follows:


 


“Notwithstanding Section 8.2(a) or anything else in this
Agreement or the other Loan Documents to the contrary, there shall be no limit
on the ability of the direct or indirect owners of Borrower (including, without
limitation, the direct and indirect owners of Behringer Harvard Operating
Partnership I LP, a Texas limited partnership (“Behringer
LP”)) to Transfer (including, without limitation, pledge) their
direct or indirect interests in Borrower (including, without limitation, direct
or indirect interests in Behringer LP) without the consent of or notice to
Lender, the Rating Agencies or any other Person provided that if, after
giving effect to such pledge or transfer and all prior pledges or transfers,
more than forty nine percent (49%) in the aggregate of direct or indirect
interests in Borrower are owned by any Person and its Affiliates that owned
less than a forty nine percent (49%) direct or indirect interest in Borrower as
of November 1, 2007, Lender shall receive a non-consolidation opinion
acceptable to the Rating Agencies (or if no Securities are outstanding at the
time, acceptable to Lender in its reasonable discretion); provided,


 


9





















 


further, however, that the following
entities may not pledge their direct or indirect interests in Borrower except
in connection with a Mezzanine Loan: Behringer Harvard 200 South Wacker Drive,
LLC, Behringer Harvard 200 South Wacker Drive Holding Business Trust, and Behringer
LP.”


 


b.                                      Exhibit A
to the Cash Management Agreement is hereby deleted in its entirety and replaced
with the Exhibit A attached hereto.


 


c.                                       Exhibit B
to the Cash Management Agreement is hereby deleted in its entirety and replaced
with the Exhibit B attached hereto.


 


17.                                 No
Other  Modifications of the Loan Documents.  Except as specifically provided for herein, the parties
acknowledge and agree that the Transaction will not result in any modifications
to the Loan Documents.


 


18.                                 Conditions.
This Agreement shall be of no force and effect until each of the following
conditions has been met to the complete satisfaction of Lender:


 


a.                                       Fees
and Expenses. Borrower shall pay, or cause to be paid (i) all costs
and expenses incident to the preparation and execution hereof and the
consummation of the transactions contemplated hereby, including reasonable
legal fees of Lender’s counsel, and (ii) the next regularly scheduled monthly payment due under the Loan,
and the other fees and expenses outlined in the beneficiary statement
distributed to the parties by Lender.


 


b.                                      Other
Conditions. Satisfaction of all requirements under the Loan Documents for
this transaction as determined by Lender and Lender’s counsel in their
reasonable discretion.


 


19.                                 Default.


 


a.                                       Breach.
Any breach by Borrower, Original Indemnitor or Substitute Obligors of the
representations and warranties contained herein shall constitute an Event of
Default, subject to cure rights prescribed for similar Events of Default in the
Loan Documents.


 


b.                                      Failure
to Comply. Any failure by Borrower, Original Indemnitor or Substitute
Obligors to fulfill any one of the conditions set forth in this Agreement shall
constitute a default under this Agreement and an Event of Default, subject to
cure rights prescribed for similar Events of Default in the Loan Documents.


 


20.                                 Additional
Representations, Warranties and Covenants of Borrower and Substitute Obligors.  As a condition of this Agreement, Borrower
and Substitute Obligors, as applicable, represent and warrant to Lender, as of
the date hereof, as follows:


 


a.                                       Borrower
is a limited liability
company duly organized, validly existing and in good standing under the
laws of the State of Delaware and is authorized to transact business and in
good standing in the State of Illinois. Borrower has full power and authority
to enter into and carry out the terms of this Agreement and to continue to
carry out the terms of the Loan Documents.


 


10





















 


b.                                      Purchaser
is a limited liability company
duly organized, validly existing and in good standing under the laws of
the State of Delaware. Purchaser has full power and authority to enter into and
carry out the terms of this Agreement and to own the membership interests in
Borrower.


 


c.                                       Substitute
Indemnitor is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maryland. Substitute Indemnitor has
full power and authority to enter into this Agreement, to become obligated for
the obligations of Original Indemnitor under the Indemnity Agreement and the
Environmental Indemnity Agreement, and to carry out the terms of the Indemnity
Agreement and the Environmental Indemnity Agreement.


 


d.                                      This
Agreement constitutes the legal, valid and binding obligations of Borrower and
Substitute Obligors enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally, and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Neither the
entry into nor the performance of and compliance with this Agreement has
resulted or will result in any violation of, or a conflict with or a default
under, any judgment, decree, order, mortgage, indenture, contract, agreement or
lease by which Borrower or Substitute Obligors or any property of Borrower or
Substitute Obligors are bound, or any statute, rule or regulation applicable
to Borrower or Substitute Obligors.


 


e.                                       There
is no action, proceeding or investigation pending or, to the best of Borrower
and Substitute Obligors’ knowledge, threatened which questions, directly or
indirectly, the validity or enforceability of this Agreement or the Loan
Documents.


 


f.                                         Borrower
hereby represents and warrants to Lender that Borrower will not permit the
transfer of any interest in Borrower to any person or entity (or any beneficial
owner of such entity) who is listed on the specifically Designated Nationals
and Blocked Persons List maintained by the Office of Foreign Asset Control,
Department of the Treasury pursuant to Executive Order No. 13224, 66 Fed.
Reg. 49079 (Sept. 25, 2001) or any other list of terrorists or terrorist organizations
maintained pursuant to any of the rules and regulations of Office of
Foreign Asset Control, Department of the Treasury or pursuant to any other
applicable Executive Orders (such lists are collectively referred to as the “OFAC Lists”). Borrower will not
knowingly enter into a lease with any party who is listed on the OFAC Lists.
Borrower shall immediately notify Lender if Borrower has knowledge that any
member or beneficial owner of Borrower is listed on the OFAC Lists or is (A) indicted
on or (B) arraigned and held over on charges involving money laundering or
predicate crimes to money laundering. Borrower shall immediately notify Lender
if Borrower knows that any tenant is listed on the OFAC Lists or (A) is
convicted on, (B) pleads nolo contendere to, (C) is indicted on, or (D) is
arraigned and held over on charges involving money laundering or predicate
crimes to money laundering. Borrower further represents and warrants to Lender
that Borrower is currently not on the OFAC list.


 


g.                                      No
representation or warranty of Borrower or Substitute Obligors made in this
Agreement contains any untrue statement of material fact or omits to state a
material fact known to Borrower or Substitute Obligors and necessary in order to make such
representations and warranties not misleading in light of the circumstances
under which they are made.


 


11





















 


Any breach of Borrower or Substitute Obligors of any of the
representations and warranties shall constitute an Event of Default under the
Loan Agreement and the Loan Documents.


 


21.                                 Additional
Representations and Warranties of Seller.
As a condition of this Agreement, Seller represents and warrants to
Lender only (and not to any other party to the Agreement or any other person or
entity) as follows:


 


a.                                       Seller is a limited partnership
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Seller has full power and authority to enter into and carry
out the terms of this Agreement and to carry out the Transfer.


 


b.                                      This
Agreement, the Purchase Agreement and all other documents executed by Seller in
connection therewith and herewith constitute legal, valid and binding
obligations of Seller enforceable against Seller in accordance with their respective
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Neither the entry into nor the performance of and compliance with this
Agreement, the Purchase Agreement or the other documents executed by Seller in
connection therewith or herewith has resulted or will result in any violation
of, or a conflict with or a default under, any judgment, decree, order,
mortgage, indenture, contract, agreement or lease by which Seller or any
property of Seller is bound, or any statute, rule or regulation applicable
to Seller.


 


c.                                       No
representation or warranty of Seller made in this Agreement contains any untrue
statement of material fact or omits to state a material fact known to Seller
and necessary in order to make such representations and warranties not misleading
in light of the circumstances under which they are made.


 


22.                                 Additional
Representations and Warranties of Original Indemnitor.  As a condition of this Agreement, Original
Indemnitor represents and warrants to Lender only (and not to any other party
to the Agreement or any other person or entity) as follows:


 


a.                                       Original Indemnitor is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Delaware, and is authorized to execute this Agreement.


 


b.                                      This
Agreement constitutes the legal, valid and binding obligation of Original
Indemnitor enforceable against Original Indemnitor in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors’ rights generally, and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
Neither the entry into nor the performance of and compliance with this
Agreement has resulted or will result in any violation of, or a conflict with
or a default under, any judgment, decree, order, mortgage, indenture, contract,
agreement or lease by which Original Indemnitor or any property of Original Indemnitor
is bound, or any statute, rule or regulation applicable to Original
Indemnitor.


 


12





















 


c.                                       No
representation or warranty of Original Indemnitor made in this Agreement
contains any untrue statement of material fact or omits to state a material
fact known to Original Indemnitor and necessary in order to make such
representations and warranties not misleading in light of the circumstances
under which they are made.


 


23.                                 No
Further Consents. Borrower and Substitute Obligors acknowledge and agree
that Lender’s consent herein contained is expressly limited to the Transaction
as herein described, that such consents shall not waive or render unnecessary
Lender’s consent or approval of any subsequent sale, conveyance, assignment or
transfer of the Property or any interest therein (as defined in the Loan
Agreement), or any future substitution of indemnitor, and Borrower, Substitute
Obligors and Lender acknowledge and agree that Section 4.2.1 and Article VIII
of the Loan Agreement shall continue in full force and effect, as modified in
this Agreement.


 


24.                                 Incorporation
of Recitals. Each of the Recitals set forth above in this Agreement are
incorporated herein and made a part hereof.


 


25.                                 Property
Remains as Security for Lender. All of the “Property” as described and
defined in the Mortgage shall remain in all respects subject to the lien,
charge or encumbrance of the Mortgage, and, except as set forth herein, nothing
herein contained and nothing done pursuant hereto shall affect or be construed
to release or affect the liability of any party or parties who may now or
hereafter be liable under or on account of the Note or the Mortgage, nor shall
anything herein contained or done in pursuance hereof affect or be construed to
affect any other security for the Note, if any, held by Lender.


 


26.                                 No
Waiver by Lender. Nothing contained herein shall be deemed a waiver of any
of Lender’s rights or remedies under the Loan Agreement, the Note, the
Mortgage, the Loan Documents or applicable law.


 


27.                                 Captions.
The headings to the Sections of this Agreement have been inserted for
convenience of reference only and shall in no way modify or restrict any
provisions hereof or be used to construe any such provisions.


 


28.                                 Partial
Invalidity. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Agreement.


 


29.                                 Entire
Agreement. This Agreement and the documents contemplated to be executed
herewith constitutes the entire agreement among the parties hereto with respect
to the Transaction and shall not be amended unless such amendment is in writing
and executed by each of the parties. This Agreement supersedes all prior
negotiations regarding the subject matter hereof. This Agreement may not be
amended, revised, waived, discharged, released or terminated orally, but only
by a written instrument or instruments executed by the party against which
enforcement of the amendment, revision, waiver, discharge, release or
termination is asserted. Any alleged amendment, revision, waiver, discharge,
release or termination which is not so documented shall not be effective as to
any party.


 


13





















 


30.                                 Binding
Effect. This Agreement and the documents contemplated to be executed in
connection herewith shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns; provided, however,
that the foregoing provisions of this Section shall not be deemed to be a
consent by Lender to any further sale, conveyance, assignment or transfer of
the Property or any interest therein (as defined in the Loan Agreement), except
to the extent permitted in the Loan Documents or herein.


 


31.                                 Multiple
Counterparts. This Agreement may be executed in multiple counterparts, each
of which will be an original, but all of which, taken together, will constitute
one and the same Agreement.


 


32.                                 Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.


 


33.                                 Effective
Date. This Agreement shall be effective as of the date of its execution by
the parties hereto and thereupon is incorporated into the terms of the Loan
Documents.


 


34.                                 Time
of Essence. Time is of the essence with respect to all provisions of this
Agreement.


 


35.                                 Cumulative
Remedies. All remedies contained in this Agreement are cumulative and
Lender shall also have all other remedies provided at law and in equity or in
the Loan Agreement and the Loan Documents. Such remedies may be pursued
separately, successively or concurrently at the sole subjective direction of
Lender and may be exercised in any order and as often as occasion therefor
shall arise.


 


36.                                 Construction.
Each party hereto acknowledges that it has participated in the negotiation of
this Agreement and that no provision shall be construed against or interpreted
to the disadvantage of any party. Each of the parties has had sufficient time
to review this Agreement, have been represented by legal counsel at all times,
have entered into this Agreement voluntarily and without fraud, duress, undue
influence or coercion of any kind. No representations or warranties have been
made by Lender to any party except as set forth in this Agreement.


 


37.                                 Non-Recourse.
The provisions of Section 11.22 of the Loan Agreement shall apply to the
representations, warranties, covenants and obligations of Borrower set forth in
this Agreement and such provisions are incorporated herein by reference.


 


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14





















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the date first aforesaid.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  200 SOUTH WACKER PROPERTY LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard 200 South Wacker

  Drive, LLC, a Delaware limited liability

  company, Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 


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[SIGNATURES
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  ORIGINAL INDEMNITOR:

  
	
   

  	
   

  
	
   

  	
  BEACON CAPITAL STRATEGIC PARTNERS

  IV, L.P., a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BCP Strategic Partners IV, L.P., a Delaware

  limited partnership, General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BCP Strategic Partners IV GP, LLC, a

  Delaware limited liability company,

  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Beacon Capital Partners, LLC, a

  Delaware limited liability

  company, Sole Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name: Nancy J. Broderick

  
	
   

  	
   

  	
  Title:   Managing Director

  



 


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[SIGNATURES
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  SELLER:

  
	
   

  	
   

  
	
   

  	
  BCSP IV U.S. INVESTMENTS, L.P.,

  a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  BCSP REIT IV, Inc., a Maryland

  corporation, General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:  Nancy J. Broderick

  
	
   

  	
   

  	
  Title:    Managing Director

  
	
   

  	
   

  



 


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[SIGNATURES
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  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD 200 SOUTH

  WACKER DRIVE, LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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[SIGNATURES
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  SUBSTITUTE INDEMNITOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD REIT I, INC.,

  a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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  LENDER:

  
	
   

  	
   

  
	
   

  	
  LASALLE BANK NATIONAL

  ASSOCIATION as Trustee under the PSA for

  the Registered Holders of LB-UBS Commercial

  Mortgage Trust 2006-C3, Commercial Mortgage

  Pass-Through Certificates, Series 2006-C3

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Wachovia Bank, National Association,

  as Master Servicer under the PSA

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 

















 


EXHIBIT A


 


Borrower Account


 


Bank:                                                                             Bank
of America


ABA No.:                                                      026009593

Account Name:                        200 South
Wacker Property LLC (disb)

Account No.:                                   488-011-001-720


 

















 


EXHIBIT B


 


Form of Tenant Direction Letter


 


200 South Wacker Property LLC

c/o Behringer Harvard Operating Partnership I LP

15601 Dallas Parkway, Suite 600

Addison, Texas 75001


 


As of November    ,
2007


 


To:                             All
Tenants

                                               200
South Wacker Drive

                                               Chicago,
Illinois [               ]


 


Re:                     Your
lease (the “Lease”) at that certain property
at the above address and commonly known as 200 South Wacker Drive, Chicago,
Illinois (the “Property”)


 


Ladies and Gentlemen:


 


This letter
shall constitute notice to you that the undersigned has granted a security
interest in the captioned lease and all rents, additional rent and all other
monetary obligations to landlord thereunder (collectively, “Rent”) in favor of LASALLE BANK NATIONAL ASSOCIATION
as Trustee under that certain Pooling and Servicing Agreement dated as of March 13,
2006 (the “PSA”), for the Registered
Holders of LB-UBS Commercial Mortgage Trust 2006-C3, Commercial Mortgage
Pass-Through Certificates, Series 2006-C3 (“Lender”)
to secure certain of undersigned’s obligations to Lender. The undersigned
hereby instructs and authorizes you to disregard any and all previous notices
sent to you in connection with Rent and hereafter to deliver all Rent to the
following address:


 


By Wire:


 


Bank: Bank of
America


ABA #:
026009593


Beneficiary
A/C: 488-011-001-487


Beneficiary
Name: 200 S. Wacker Property LLC


 


By Mail:


 


200 South Wacker Property LLC


14106 Collections Center Drive


Chicago, IL 
60693


 


[NO FURTHER TEXT ON THIS PAGE]


 

















 


The instructions set forth herein are irrevocable and are not subject to
modification in any manner, except that Lender, or any successor lender so
identified by Lender, may by written notice to you rescind the instructions
contained herein.


 


	
   

  	
  Sincerely,

  
	
   

  	
   

  
	
   

  	
  200 SOUTH WACKER PROPERTY LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard 200 South Wacker

  Drive, LLC, a Delaware limited liability

  company, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
  Title: