Exhibit 10.94


 


Upon recording, return to:


Thompson & Knight L.L.P.


1700 Pacific Avenue, Suite 3300


Dallas, Texas 75201


Attention: Ray T. Khirallah


 


ASSUMPTION AND MODIFICATION AGREEMENT


 


	
  THE STATE OF TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY OF COLLIN

  	
   

  	
  §

  



 


THIS ASSUMPTION AND
MODIFICATION AGREEMENT (this “Agreement”) is
made and entered into effective as of the 3rd day of August 2007, by
and among FRISCO SQUARE LAND, LTD., a Texas limited partnership (“Original Borrower”), BHFS I, LLC, a Delaware
limited liability company (“Borrower”), and
COMERICA BANK (“Lender”).


 


W I T N E S S E T H:


 


WHEREAS, Original Borrower
has executed and delivered to Lender:


 


(i)                                     that certain Amended and Restated Loan
Agreement dated effective as of the 10th day of March, 2006, executed by and
between Original Borrower and Lender, as amended by that certain Modification
And Extension Agreement (the “SLOC Modification”)
dated effective as of March 10, 2007 executed by and between Original Borrower
and Lender (as so amended, the “Loan Agreement”);


 


(ii)                                  that certain Amended and Restated Promissory
Note Eurodollar Rate-Single Payment Note (the “Term Note”)
dated March 10, 2006 executed by Original Borrower, and payable to the order of
Lender, in the maximum face amount of Twenty Six Million Six Hundred Sixty Four
Thousand And No/100 Dollars ($26,664,000.00),


 


(iii)                               that certain Note (the “SLOC Note”)
dated effective March 10, 2006 executed by Original Borrower, and payable to
the order of Lender, as amended by the SLOC Modification, in the maximum amount
of One Million Five Hundred Thousand And No/100 Dollars ($1,500,000.00) (the
Term Note and SLOC Note are referred to herein collectively as the “Notes”); and


 


(iv)                              that certain Amended and Restated Deed of
Trust, Security Agreement and Assignment of Rents (the “Deed of
Trust”) dated March 10, 2006 from Borrower to Melinda A. Chausse,
Trustee, for the benefit of Lender, 


 


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securing the payment of the
Notes, covering certain real and personal property described therein (the “Original Mortgaged Property”), and recorded under document
number 20060314000340000, Official Public Records, Collin County, Texas (the
Term Note, Loan Agreement, Deed of Trust and all other documents executed by
Borrower and/or any other party or parties evidencing or securing or otherwise
in connection with the loans evidenced by the Term Note (the “Loans”) being herein collectively called the “Loan Documents”).


 


WHEREAS, Original Borrower
has requested that Lender consent to the partial release of a portion of the
Original Mortgaged Property, the sale and conveyance of the remainder of the
Original Mortgaged Property to Borrower and the assignment to and assumption by
Borrower of all of Original Borrower’s obligations under the Loan Documents;
Borrower desires to assume the obligations of Original Borrower under the Loan
Documents from and after the date hereof and to continue the lien, security
interest and other encumbrances securing the Loans created by the Loan
Documents; and Lender is willing to consent to such conveyance and assignment
and assumption upon Original Borrower’s and Borrower’s execution of and
compliance with the terms and provisions of this Agreement;


 


WHEREAS, in connection with
such conveyance of the remainder of the Original Mortgaged Property to Borrower
and Borrower’s assumption of Original Borrower’s obligations under the Loan
Documents, Lender and Borrower desire to amend and modify the Loan Documents as
provided herein; and


 


NOW, THEREFORE, for and in
consideration of the mutual covenants contained herein and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


AGREEMENT


 


1.                                       Recitals. The foregoing recitals are true and correct and are hereby
incorporated into this Agreement for all purposes.


 


2.                                       Partial Release; Conveyance of Remainder of
Original Mortgaged Property.


 


(a)                                  Contemporaneously herewith and at the request
of Original Borrower and Borrower, Lender has released the parcels of land more
particularly described on Exhibit A attached hereto and made a part
hereof (the “Released Parcels”) from the lien
of the Deed of Trust for a partial release price of Six Million Eight Hundred
Thousand and no/100 Dollars ($6,800,000.00) (the “Release
Paydown”) to be paid to Lender contemporaneously herewith.


 


(b)                                 Contemporaneously herewith, Original Borrower
has conveyed title to Borrower (the “Transfer”) of
those portions of the Original Mortgaged Property remaining after the release
of the Released Parcels as described in Paragraph 2(a) above and more
particularly described in Exhibit B attached hereto and made a part
hereof (the “Mortgaged Property”). Borrower
hereby acknowledges and agrees that title to the Mortgaged Property and its
interest therein is encumbered by and subject to the liens, security interests,
assignments and other terms, 


 


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covenants, restrictions and provisions of the Loan Documents as
modified herein.


 


3.                                       Assumption by Borrower.


 


(a)                                  For value received, Borrower hereby assumes
and promises to pay the indebtedness of Borrower evidenced by the Loan
Documents (the “Indebtedness”) at the times, in
the manner and in all respects as therein provided and as herein modified, and
agrees to be bound by and to perform and comply with each and every covenant,
condition and obligation of the Original Borrower from and after the date
hereof contained in the Loan Documents as though the Loan Documents had
originally been made, executed and delivered by Borrower.


 


(b)                                 Borrower hereby extends the lien(s) against
the Mortgaged Property set forth in or evidenced by the Loan Documents,
together with any and all other liens and security interests that secure
payment of the Indebtedness, until the Indebtedness and the Loan Documents, as
hereby modified, have been fully paid; and Borrower agrees that the
modification made hereby shall in no manner affect, waive or impair the Loan
Documents or any liens or security interests securing the payment of the Indebtedness,
the purpose of this Agreement being simply to affirm the liability of Borrower
for payment of the Indebtedness and to carry forward all liens and security
interests securing payment of such Indebtedness. Borrower acknowledges that all
of such liens and security interests and assignments created and evidenced by
the Deed of Trust and other Loan Documents are valid and subsisting; and
Borrower agrees that all terms and provisions of the Loan Documents, and of all
other instruments creating or fixing liens and/or security interests that
secure payment of the Indebtedness, shall be and remain in full force and
effect as therein written, except as otherwise expressly provided in this
Agreement. Borrower further acknowledges and agrees that there are no
offsets, claims or defenses to the Deed of Trust, the Loan Agreement or any of
the other Loan Documents.


 


4.                                       Conditions Precedent to Lender’s Consent. Lender’s consent and approval as set forth
in Paragraph 5 below is conditioned upon the satisfaction of the following
conditions precedent:


 


(a)                                  Lender shall have received and approved such
limited liability company documents and other organizational documents of
Borrower as are requested by Lender;


 


(b)                                 Lender shall have received and approved such
partnership documents and other organizational documents of Borrower’s sole
member as are requested by Lender;


 


(c)                                  Contemporaneously herewith, Original Borrower
shall have executed and filed for record in the real property records of Collin
County, Texas, a deed (the “Deed”) in form
satisfactory to Lender, pursuant to which title to the Mortgaged Property is
conveyed to Borrower;


 


(d)                                 Contemporaneously herewith, Original Borrower
shall have executed a bill of sale and assignment (the “Bill of Sale”)
in form satisfactory to Lender, pursuant to which the contracts and other
personal property located at and/or related to the Mortgaged Property are
assigned to Borrower;


 


3

















 


(e)                                  Original Borrower, Borrower and Guarantors shall
have executed and delivered this Agreement to Lender, and contemporaneously
therewith a fully-executed and acknowledged original of this Agreement shall
have been filed for record in the real property records of Collin County,
Texas;


 


(f)                                    Lender shall have received (i) the Release
Paydown, (ii) all accrued interest on the SLOC Note and the Term Note and (iii)
reimbursement for any and all costs and expenses and third-party costs incurred
by Lender for the processing of the Transfer and modification and assumption of
the Indebtedness, including, without limitation, legal fees, recording and
transfer fees, and title insurance costs and premiums;


 


(g)                                 Borrower shall have (i) executed and filed
(or shall have cooperated with the procedure for executing and filing)
financing statements and/or financing statement amendments in form and
substance satisfactory to Lender in all places necessary in connection with the
perfection of Lender’s security interest in the fixtures, personalty and other
property described in the Deed of Trust and (ii) delivered to Lender UCC
searches evidencing such filings;


 


(h)                                 Contemporaneously herewith, Borrower shall
have delivered to Lender, in form and substance satisfactory to Lender, a
Guaranty (the “Behringer Guaranty”) in favor of
Lender, executed by Behringer Harvard Opportunity REIT I, Inc., a Maryland
corporation (the “Behringer Guarantor”);


 


(i)                                     Contemporaneously herewith, Borrower shall
have delivered to Lender, in form and substance satisfactory to Lender, an
Amended and Restated Guaranty (the “Fairways Guaranty”)
in favor of Lender, executed by James C. Leslie, Cathy R. Sweeney, A. Brant
Bryan and David F. Stringfield (herein being collectively referred to as the “Fairways Guarantors” and sometimes individually referred to as
a “Fairways Guarantor”), which Fairways
Guaranty shall amend, restate and supersede that certain Guaranty dated April
15, 2005 executed by the Fairways Guarantors in favor of Lender (the Behringer
Guarantor and the Fairways Guarantors being collectively referred to herein as “Guarantors” and sometimes individually referred to as a “Guarantor”);


 


(j)                                     Contemporaneously herewith, Borrower shall
have executed and delivered to Lender a Certification of Non-Foreign Status in
a form acceptable to Lender;


 


(k)                                  Borrower shall have delivered to Lender, in
form and substance satisfactory to Lender, an opinion of counsel to Borrower,
stating that, inter alia, (i) Borrower is duly formed, legally existing and in
good standing under the laws of the State of Delaware and qualified to conduct
business in the State of Texas, (ii) the execution of this Agreement and the
other documents executed by Borrower in connection with the assumption and
modification of the Indebtedness, have been duly authorized by Borrower, (iii) Borrower
has all requisite authority to own, lease and operate the Mortgaged Property,
(iv) Borrower has all requisite authority to assume the obligations of Original
Borrower under the Loan Documents, and (v) this Agreement and the other
documents executed by Borrower in connection with the assumption of 


 


4

















 


the Indebtedness and modification of the Loan Documents (x) have been
duly executed and delivered by Borrower, (y) are legal, valid, and binding
obligations of Borrower, and (z) are enforceable against Borrower in accordance
with their terms;


 


(l)                                     Borrower shall have delivered to Lender, in
form and substance satisfactory to Lender, an opinion or opinions of counsel to
the Behringer Guarantor, stating that, inter alia, (i) the Behringer Guarantor
is duly formed, legally existing and in good standing under the laws of the
state of its formation, (ii) the execution of the Behringer Guaranty and the
other documents executed by the Behringer Guarantor in connection with the
assumption of the Indebtedness and modification of the Loan Documents have been
duly authorized by the Behringer Guarantor, (iii) the Behringer Guarantor has
all requisite authority to perform the obligations of the Behringer Guarantor
under the Behringer Guaranty, and (v) the Behringer Guaranty and the other
documents executed by the Behringer Guarantor in connection with the assumption
of the Indebtedness and modification of the Loan Documents (x) have been duly
executed and delivered by the Behringer Guarantor, (y) are legal, valid, and
binding obligations of the Behringer Guarantor, and (z) are enforceable against
the Behringer Guarantor in accordance with their terms;


 


(m)                               Borrower shall have delivered to Lender, in
form and substance satisfactory to Lender, an opinion of counsel to the
Original Borrower and the Fairways Guarantors, stating that, inter alia, (i)
each of the Fairways Guarantors is duly formed, legally existing and in good
standing under the laws of Texas and qualified to conduct business in the State
of Texas, (ii) the execution of the Fairways Guaranty and the other documents
executed by the Fairways Guarantors in connection with the assumption of the
Indebtedness and modification of the Loan Documents have been duly authorized
by the Fairways Guarantors, (iii) each of the Fairways Guarantors has all
requisite authority to perform the obligations of such Fairways Guarantor under
the Fairways Guaranty, (v) the Fairways Guaranty and the other documents
executed by the Fairways Guarantors in connection with the assumption of the
Indebtedness and modification of the Loan Documents (x) have been duly executed
and delivered by each of the Fairways Guarantors, (y) are legal, valid, and
binding obligations of each of the Fairways Guarantors, and (z) are enforceable
against each of the Fairways Guarantors in accordance with their terms, and
(vi) the Agreement and the other documents executed by Original Borrower in
connection with the assumption of the Indebtedness and modification of the Loan
Documents (xx) have been duly executed and delivered by Original Borrower, (yy)
are legal, valid, and binding obligations of Original Borrower, and (zz) are
enforceable against Original Borrower in accordance with their terms;


 


(n)                                 Borrower shall, at its sole cost and expense,
obtain and deliver to Lender a new mortgagee title policy insuring the lien of
the Deed of Trust, insuring that no other changes to the status of title to the
Mortgaged Property have occurred since the recordation of the Deed of Trust not
previously approved by Lender in writing or approved by Lender in connection
with the transactions contemplated by this Agreement;


 


(o)                                 There shall be no secondary or subordinate
financing of the Mortgaged Property in connection with the conveyance and
transfer of the Mortgaged Property by Original Borrower to Borrower.


 


5

















 


5.                                       Consent to Transfer of Property. Subject to the conditions set forth in
Paragraph 4 above, Lender hereby consents to the Transfer, and Lender hereby
accepts Borrower as the owner of the Mortgaged Property, all without prejudice
to Lender’s rights with respect to any future conveyance of the Mortgaged
Property (or any interest therein), it being understood and agreed that this consent
applies only to the Transfer and not to any future sales or transfers by
Borrower.


 


6.                                       Outstanding Balance.


 


(a)                                  All parties to this Agreement hereby agree
that as of the date of this Agreement and prior to the application of the
Release Paydown, the outstanding balance of the Indebtedness was Twenty Seven
Million Nine Hundred Fifteen Thousand Two Hundred Seventy Nine and 86/100
Dollars ($27,915,279.86), allocated under the Notes as follows:


 


(i)                                     the unpaid principal balance on the Term Note
was Twenty Six Million Four Hundred Fifteen Thousand Two Hundred Seventy Nine
and 86/100 Dollars ($26,415,279.86),


 


(ii)                                  the unpaid principal balance on the SLOC Note
was One Million Five Hundred Thousand And No/100 Dollars ($1,500,000.00); and


 


(iii)                               the accrued interest on the SLOC Note as of
August 2, 2007 is $ 8,145.83 and the accrued interest on the Term Note as of
August 2, 2007 is $143,998.30.


 


(b)                                 All parties to this Agreement agree that the
Release Paydown was applied first to the outstanding principal balance of the
SLOC Note, which is now paid in full, and then to the outstanding principal
balance of the Term Note.


 


(c)                                  All parties to this Agreement hereby agree
and stipulate that the outstanding principal balance of the Indebtedness (and
the Term Note) as of the date of this Agreement after application of the
Release Paydown as provided in Paragraph 6(b) above is Twenty One Million One
Hundred Fifteen Thousand Two Hundred Seventy Nine and 86/100 Dollars
($21,115,279.86).


 


7.                                       Modifications of Loan Documents. Subject to consummation of the Transfer of
even date herewith and satisfaction of the conditions set forth in Paragraph 3
above, from and after the date of this Agreement, the terms of the Loan
Documents shall be, and the same hereby are, modified as follows:


 


(a)                                  All references in the Loan Documents to
Original Borrower shall be deemed replaced with Borrower throughout the Loan
Documents except in the definition of the Frisco Square Development
Agreement and the definition of MMD Payments.


 


(b)                                 Borrower
and Lender agree that the Second Line of Credit is hereby terminated and of no
further force and effect and that all references in the Loan Documents to the 


 


6

















 


SLOC Note, SLOC
Maturity Date, Maximum SLOC Commitment and all other references to the Second
Line of Credit are hereby deleted and shall be of no further force or effect.


 


(c)                                  Borrower shall be entitled to no further
advances of the Term Loan.


 


(d)                                 The
definition of  “Borrower’s
General Partner” is hereby deleted and replaced in its entirety with
“Borrower’s Member”:  Behringer Harvard Frisco Square LP, a
Delaware limited partnership.


 


(e)                                  The “Term Loan Maturity Date” is (and all
references thereto in the Loan Documents are) hereby amended to be to December
3, 2007 rather than April 15, 2008. Borrower may prepay the Term Note but only
in strict compliance with the terms set forth therein. The options to extend
the Term Loan Maturity Date set forth in Section 2.7 of the Loan Agreement are
hereby deleted and Borrower shall have no right to extend the Term Loan
Maturity Date.


 


(f)                                    Section 2.8 of the Loan Agreement is hereby
deleted in its entirety and Borrower shall have no right to reduce the Stated
Rate under the Term Note.


 


(g)                                 The definition of “Guarantors” set forth in
Section 1.1 of the Loan Agreement is hereby amended to include the Behringer
Guarantor as well as the Fairways Guarantors.


 


(h)                                 Borrower shall maintain at all times a Loan
to Value Ratio equal to or less than 63%.


 


(i)                                     The definition of “Change in Control” under
the Loan Agreement is hereby amended to read in its entirety as follows:


 


“Change in Control:  The occurrence of any one or more of the
following: (i) Borrower’s Member shall cease to own, directly, all of the
member interests of Borrower; or (ii) the voluntary or involuntary transfer of
any of the membership interests of Borrower; or (iii) the voluntary or
involuntary transfer of more than 10% in the aggregate of the interest of any
of the limited partners of Borrower’s Member.”


 


(j)                                     Section
4.9 of the Loan Agreement is hereby
deleted in its entirety.


 


(k)                                  The term “Obligors” shall not include the
Behringer Guarantor for purposes of Sections 5.7, 5.9, 5.18, 8.1 (m) and 8.1(q)
of the Loan Agreement, provided, however, that it shall be an Event of Default
if the Behringer Guarantor liquidates, terminates or dissolves.


 


(l)                                     In Section 6.9(b) of the Loan Agreement, the
reference to “90 days” is hereby deleted and replaced with “120 days”.


 


(m)                               Section 6.11 of the Loan Agreement is hereby
deleted in its entirety.


 


7

















 


(n)                                 Section 7.7 of the Loan Agreement is hereby
amended to read in its entirety as follows:


 


“Debt. (a) Borrower will not create, incur, suffer or
permit to exist, or assume or guarantee, directly or indirectly, or become or
remain liable with respect to any Debt, other than the Indebtedness and Debt
secured by liens on other portions of the Frisco Square Property or otherwise
related to the Frisco Square Property, whether direct, indirect, absolute,
contingent or otherwise.”


 


(o)                                 Section
7.8 of the Loan Agreement shall be amended to read in its entirety as follows:


 


“Frisco Square Development
Agreement.                Borrower will use its best efforts to cause
the Original Borrower to comply with all the terms and conditions of the Frisco
Square Development Agreement and the MMD Guaranty and fully pay and perform all
of Borrower’s obligations thereunder.”


 


(p)                                 Section 8.1 (o) of the Loan Agreement
is hereby deleted in its entirety.


 


(q)                                 Lender
acknowledges that Original Borrower failed to make the Required Principal
Payment on March 31, 2007 as required in Section 2.9 of the Loan Agreement and
hereby agrees that such failure shall not constitute a default under the Loan
Documents. Section 2.9 of the Loan Agreement is hereby deleted in its entirety
and Borrower shall have no obligation to make the Required Principal Payment.


 


(r)                                    Lender
acknowledges that there currently exists a default under the Frisco Square
Development Agreement with respect to the Closing Date thereunder for the
exchange of certain Frisco Square Property and the acquisition of two parking
lots from the City of Frisco but such default shall not constitute an Event of
Default and Lender hereby waives all remedies in connection with such default
so long as those transactions are closed within 60 days of the execution of
this Agreement.


 


8.                                       Representations.
Warranties and Covenants by Original Borrower. Original Borrower hereby
represents, warrants, certifies and covenants to Lender that:


 


(a)                                  Original
Borrower and its general partner are duly organized, validly existing and in
good standing under the laws of the State of Texas;


 


(b)                                 Original
Borrower and its general partner (i) are in compliance with all legal
requirements applicable to them and the Mortgaged Property, and (ii) have the
necessary power and authority to execute and deliver this Agreement and the
Deed, Bill of Sale and any other documents necessary to effectuate the Transfer
(such Deed, Bill of Sale and other documents being herein referred to
collectively as the “Transfer Documents”)
the and to incur and perform the obligations provided for herein and therein,
all of which have been duly authorized by all proper and necessary partnership
or limited liability company action. No consent or approval of partners,
members or of any other person or public authority or regulatory body is
required as a condition to the validity or enforceability of this Agreement or
the Transfer 


 


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Documents or, if
required, the same has been duly obtained and copies of such consent or
approval delivered to Lender;


 


(c)                                  There
is no litigation or proceeding pending, or to the current actual knowledge of
Original Borrower threatened, against or affecting Original Borrower or the
Mortgaged Property in any court or administrative agency or before any
governmental authority or arbitration board or tribunal which could materially
and adversely affect the Mortgaged Property, or the authority of Original
Borrower to enter into, or the ability of Original Borrower to perform its
obligations under, this Agreement, or the Transfer Documents, which, in any
way, could adversely affect the validity or enforceability of this Agreement or
the Transfer Documents, as applicable;


 


(d)                                 The
execution and delivery by Original Borrower of this Agreement and compliance by
Original Borrower with all of the provisions hereof (i) are within the power of
Original Borrower and (ii) will not conflict with or result in any violation
of, breach of any of the provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon the Mortgaged
Property (other than in accordance with the Loan Documents), under the
provision of, any agreement, partnership agreement or other instrument to which
Original Borrower is a party or by which Original Borrower or the Mortgaged
Property may be bound, or any applicable license, judgment, decree, or other
legal requirement applicable to Original Borrower or any of its activities or
the Mortgaged Property;


 


(e)                                  This
Agreement and the Transfer Documents have been properly executed and delivered
by Original Borrower, and duly authorized by all necessary partnership action,
and this Agreement and the Transfer Documents are valid and binding obligation
of Original Borrower, enforceable against Original Borrower in accordance with
their respective terms;


 


(f)                                    Original
Borrower represents that to the best of Original Borrower’s knowledge there
exists no uncured default or event of default under the Loan Documents (as
modified by this Agreement) except as disclosed herein and Original Borrower is
not in default with respect to any order of any court or other governmental
authority, or in violation in any material respect of any agreement,
partnership agreement, charter document, by-law or other instrument to which it
is a party or by which it may be bound except as disclosed herein;


 


(g)                                 Original
Borrower has not (i) applied for or consented in writing to the appointment of
a receiver, trustee or liquidator of Original Borrower of any or all of the
Mortgaged Property, or of all or substantially all of the other assets of
Original Borrower, or (ii) filed a voluntary petition in bankruptcy or admitted
in writing its inability to pay its debts as they become due, or (iii) made a
general assignment for the benefit of creditors, or (iv) filed a petition or an
answer seeking a reorganization or an arrangement with creditors or to take
advantage of any insolvency law, or (v) filed an answer admitting the material
allegations of a petition filed against Original Borrower in any bankruptcy,
reorganization or insolvency proceeding, or (vi) been dissolved as a result of
any adversary suit or proceeding, or (vii) transferred by merger, sale,
consolidation, assignment, operation of law, or otherwise all or substantially
all of Original Borrower’s assets (other than as contemplated by Section 3.b
hereinabove). Original Borrower is generally paying its debts as such debts
become due, and Original Borrower is not “insolvent” as 


 


9

















 


that term is
defined in Section 101(31) of the Bankruptcy Code, 11 U.S.C. § § 101, et seq.;


 


(h)                                 Original
Borrower is not in violation of any Federal or State laws, including, but not
limited to, Federal securities laws, blue-sky laws, and other laws, or the
rules or regulations of the Securities and Exchange Commission;


 


(i)                                     There
are no law suits or legal proceedings pending or, to the current actual
knowledge of Original Borrower, threatened in any court or before any
governmental agency involving Original Borrower or the Mortgaged Property, nor
are there any judgments outstanding against Original Borrower; and


 


(j)                                     The
representations, warranties and certifications set forth herein are given to
induce Lender to grant the consent and approval set forth in Paragraph 4 above,
with the knowledge that Lender will rely upon the truth of the statements made
herein.


 


9.                                       Representations.
Warranties and Covenants by Borrower. Borrower hereby represents, warrants,
certifies and covenants to Lender that:


 


(a)                                  Borrower
is duly organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization and is qualified to do business and is in good
standing in the State of Texas;


 


(b)                                 Borrower
(i) is in compliance with all legal requirements applicable to it and the
Mortgaged Property, (ii) has all requisite power and authority and all
necessary licenses and permits to own and operate the Mortgaged Property and to
carry on its business as now being conducted and (iii) has the necessary power
and authority to execute and deliver this Agreement and the Transfer Documents
and to incur and perform the obligations provided for herein and therein, all of
which have been duly authorized by all proper and necessary partnership or
limited liability company action. No consent or approval of members or of any
other person or public authority or regulatory body is required as a condition
to the validity or enforceability of this Agreement or the Transfer Documents
or, if required, the same has been duly obtained and copies of such consent or
approval delivered to Lender;


 


(c)                                  There
is no litigation or proceeding pending, or to the current actual knowledge of
Borrower threatened, against or affecting Borrower or the Mortgaged Property in
any court or administrative agency or before any governmental authority or
arbitration board or tribunal which could materially and adversely affect the
Mortgaged Property, business, prospects, profits or condition (financial or
otherwise) of Borrower or the authority of Borrower to enter into, or the
ability of Borrower to perform its obligations under, this Agreement or the
Transfer Documents, or which, in any way, could adversely affect the validity
or enforceability of this Agreement or the Transfer Documents, as applicable;


 


(d)                                 The
execution and delivery by Borrower of this Agreement and compliance by Borrower
with all of the provisions hereof (i) is within the power of Borrower and (ii)
will not conflict with or result in any violation of, breach of any of the
provisions of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon the 


 


10

















 


Mortgaged Property
(other than in accordance with the Loan Documents), under the provision of, any
agreement or other instrument to which Borrower is a party or by which Borrower
or the Mortgaged Property may be bound, or any applicable license, judgment, decree,
or other legal requirement applicable to Borrower or any of its activities or
the Mortgaged Property;


 


(e)                                  This
Agreement and the Transfer Documents have been properly executed and delivered
by Borrower, and duly authorized by all necessary limited liability company
action, and this Agreement and the Transfer Documents are valid and binding
obligation of Borrower, enforceable against Original Borrower in accordance
with their respective terms;


 


(f)                                    Borrower
is the sole legal and beneficial owner of the fee simple interest in the
Mortgaged Property;


 


(g)                                 Borrower
is not in default with respect to any order of any court or other governmental
authority, or in violation in any material respect of any agreement, charter
document, by-law or other instrument to which it is a party or by which it may
be bound;


 


(h)                                 Borrower
has not (i) applied for or consented in writing to the appointment of a
receiver, trustee or liquidator of Borrower or of any or all of the Mortgaged
Property, or of all or substantially all of the other assets of Borrower, or
(ii) filed a voluntary petition in bankruptcy or admitted in writing its
inability to pay its debts as they become due, or (iii) made a general
assignment for the benefit of creditors, or (iv) filed a petition or an answer
seeking a reorganization or an arrangement with creditors or to take advantage
of any insolvency law, or (v) filed an answer admitting the material
allegations of a petition filed against Borrower in any bankruptcy,
reorganization or insolvency proceeding, or (vi) been dissolved as a result of
any adversary suit or proceeding, or (vii) transferred by merger, sale,
consolidation, assignment, operation of law, or otherwise all or substantially
all of Borrower’s assets (other than as contemplated by Section 3.b
hereinabove). Borrower is generally paying its debts as such debts become due,
and Borrower is not “insolvent” as that term is defined in Section 101(31) of
the Bankruptcy Code, 11 U.S.C. § § 101, et seq.;


 


(i)                                     Borrower
is not in violation of any Federal or State laws, including, but not limited
to, Federal securities laws, blue sky laws, and other laws, or the rules or
regulations of the Securities and Exchange Commission;


 


(j)                                     There
are no law suits or legal proceedings pending or, to the current actual
knowledge of Borrower, threatened in any court or before any governmental
agency involving such party or the Mortgaged Property, nor are there any
judgments outstanding against such party;


 


(k)                                  Borrower
understands and hereby acknowledges and agrees to all of the terms and
provisions of the Loan Documents as modified herein; and


 


(l)                                     The
representations, warranties and certifications set forth herein are given to
induce Lender to grant the consent and approval set forth in Paragraph 4 above
and the modifications of the Loan Documents set forth herein, with the
knowledge that Lender will rely 


 


11

















 


upon the truth of
the statements made herein.


 


10.                                 Representations
by Lender. Lender hereby represents to Borrower that: (a) Lender is the
legal and equitable owner of the Term Note, the Deed of Trust and the other
Loan Documents (subject to Guaranty Bank’s participation interest therein); (b)
prior to the execution hereof, the Loan Documents and the SLOC Note were the
only documents evidencing, securing or directly related to the Loan; (c) the
maturity of the Term Note has not been accelerated and, to the best of Lender’s
knowledge, no Event of Default currently exists that has not been waived, nor,
to the best of Lender’s knowledge, does any circumstance currently exist which,
with the giving of notice or the passage of time, or both, would constitute an
Event of Default.


 


11.                                 Indemnities
and Remedies.


 


(a)                                  Original
Borrower agrees to indemnify, defend and hold Lender harmless against any loss,
claim, damage, liability or expense (including, without limitation, reasonable
attorney’s fees) incurred as a result of any representation or warranty made by
it herein proving to be untrue in any respect.


 


(b)                                 Borrower
agrees to indemnify, defend and hold Lender harmless against any loss, claim,
damage, liability or expense (including, without limitation, reasonable
attorney’s fees) incurred as a result of any representation or warranty made by
it herein proving to be untrue in any respect. If Borrower shall fail to keep
or perform any of the covenants or agreements contained herein beyond any
applicable notice, grace and cure periods, or if any statement, representation
or warranty contained herein by Borrower is false, misleading or erroneous in
any material respect when made, it shall constitute a default under the Loan
Documents and Lender shall be entitled at its option to exercise any and all of
the rights and remedies granted pursuant to the Deed of Trust or any other Loan
Documents or which Lender may otherwise be entitled, whether at law or in
equity.


 


12.                                 Notices.
All notices or other communications required or permitted to be given pursuant
to this Agreement shall be in writing and shall be considered as properly given
if (i) mailed by first class United States mail, postage prepaid, registered or
certified with return receipt requested; (ii) by delivering same in person to
the intended addressee; or (iii) by delivery to an independent third party
commercial delivery service for same day or next day delivery and providing for
evidence of receipt at the office of the intended addressee. Notice so mailed
shall be effective upon its deposit with the United States Postage Service or
any successor thereto; notice sent by a commercial delivery service shall be
effective upon delivery to such commercial delivery service; notice given by
personal delivery shall be effective only if and when received by the
addressee; and notice given by other means shall be effective only if and when
received at the designated address of the intended addressee. For purposes of
notice, the addresses of the parties shall be as set forth below:


 


	
  Original
  Borrower:

  	
  Frisco Square
  Land, Ltd.

  
	
   

  	
  16250 Dallas
  Parkway

  
	
   

  	
  Suite 102

  
	
   

  	
  Dallas, Texas
  75248

  



 


12

















 


	
  Borrower:

  	
   

  	
  BHFS I, LLC

  
	
   

  	
   

  	
  15601 Dallas Parkway, Suite 600,

  
	
   

  	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  	
  Attn:  Asset
  Manager

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Behringer Harvard Opportunity REIT I, Inc.

  
	
   

  	
   

  	
  15601 Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  	
  Attn:  Chief
  Legal Officer

  
	
   

  	
   

  	
   

  
	
  Lender:

  	
   

  	
  Comerica Bank

  
	
   

  	
   

  	
  P.O. Box 650282

  
	
   

  	
   

  	
  Dallas, Texas
  75265-0282

  
	
   

  	
   

  	
  Attention
  Commercial Lending Services

  
	
   

  	
   

  	
  Mail Code 6514

  
	
   

  	
   

  	
   

  
	
  and

  	
   

  	
  Comerica Bank

  
	
   

  	
   

  	
  1601 Elm Street,

  
	
   

  	
   

  	
  Dallas, Texas
  75201

  
	
   

  	
   

  	
  Attention
  Commercial Lending Services

  
	
   

  	
   

  	
  Mail Code 6514

  



 


 


Any party shall have the right to change its address
for notice hereunder to any other location within the continental United States
by the giving of 30 days notice to the other party in the manner set forth
above.


 


13.                                 Further
Assurances. Original Borrower and Borrower, upon request from Lender, each
agree to execute such other and further documents as may be reasonably
necessary or appropriate to consummate the transactions contemplated herein or
to perfect the liens and security interests intended to secure the payment of
the Indebtedness.


 


14.                                 Ratification
of Loan Documents. Except as provided herein, the terms and provisions of
the Loan Documents shall remain unchanged and shall remain in full force and
effect. Any modification herein of any of the Loan Documents shall in no way
adversely affect the security of the Deed of Trust and the other Loan Documents
for the payment of the Indebtedness. The Loan Documents as modified and amended
hereby are hereby ratified and confirmed in all respects. All liens, security
interests, mortgages and assignments granted or created by or existing under
the Loan Documents remain unchanged and continue, unabated, in full force and
effect, to secure Borrower’s obligation to repay the Indebtedness.


 


15.                                 No
Waiver. Lender acknowledges that Lender and its agents in the past may have
accepted, without exercising the remedies to which Lender was entitled,
payments and performance by Borrower that constituted defaults under the Loan
Documents. Borrower acknowledges that no such acceptance or grace granted by
Lender or its agents in the past, or Lender’s agreement to the modifications
evidenced hereby, has in any manner diminished Lender’s right in the future to
insist that Borrower strictly comply with the terms of the Loan 


 


13

















 


Documents, as
modified by the terms hereof. Furthermore, Borrower specifically acknowledges
that any future grace or forgiveness of default by Lender shall not constitute
a waiver or diminishment of any right of Lender with respect to any future
default of Borrower, whether or not similar to any default with respect to
which Lender has in the past chosen, or may in the future choose, not to exercise
all of the rights and remedies granted to it under the Loan Documents.


 


16.                                 Merger;
No Prior Oral Agreements. This Agreement supersedes and merges all prior
and contemporaneous promises, representations and agreements. No modification
of this Agreement or any of the Loan Documents, or any waiver of rights under
any of the foregoing, shall be effective unless made by supplemental agreement,
in writing, executed by Lender and Borrower. Lender and Borrower further agree
that this Agreement may not in any way be explained or supplemented by a prior,
existing or future course of dealings between the parties or by any prior,
existing, or future performance between the parties pursuant to this Agreement
or otherwise.


 


17.                                 Costs
and Expenses. Contemporaneously with the execution and delivery hereof,
Borrower shall pay, or cause to be paid, all costs and expenses incident to the
preparation hereof and the consummation of the transactions specified herein,
including without limitation title insurance policy endorsement charges,
recording fees and fees and expenses of legal counsel to Lender.


 


18.                                 Release
of Lender. Original Borrower, Borrower, Original Guarantors and Guarantors
each hereby release, remise, acquit and forever discharge Lender, together with
its employees, agents, representatives, consultants, attorneys, fiduciaries,
servants, officers, directors, partners, predecessors, successors and assigns,
subsidiary corporations, parent corporations, and related corporate divisions
(all of the foregoing hereinafter called the “Released
Parties”), from any and all actions and causes of action, judgments,
executions, suits, debts, claims, demands, liabilities, obligations, damages
and expenses of any and every character, known or unknown, direct and/or
indirect, at law or in equity, of whatsoever kind or nature, whether heretofore
or hereafter accruing, for or because of any matter or things done, omitted or
suffered to be done by any of the Released Parties prior to and including the
date hereof, and in any way directly or indirectly arising out of or in any way
connected to this Agreement or any of the Loan Documents, or any of the
transactions associated therewith, or the Mortgaged Property, including
specifically but not limited to claims of usury.


 


19.                                 Severability.
If any covenant, condition, or provision herein contained is held to be
invalid, illegal or unenforceable by final judgment of any court of competent
jurisdiction, the invalidity,
illegality or unenforceability of such covenant, condition, or provision
shall not in any way affect the
remainder of this Agreement, which shall continue in full force and effect.


 


20.                                 Time
of the Essence. It is expressly agreed by the parties hereto that time is
of the essence with respect to this Agreement.


 


21.                                 Representation
by Counsel. The parties acknowledge and confirm that each of their
respective attorneys have participated jointly in the review and revision of
this Agreement 


 


14

















 


and that it has
not been written solely by counsel for one party. The parties hereto therefore
stipulate and agree that the rule of construction to the effect that any
ambiguities are to or may be resolved against the drafting party shall not be
employed in the interpretation of this Agreement to favor either party against
the other.


 


22.                                 Governing
Law. This Agreement and the rights and duties of the parties hereunder
shall be governed for all purposes by the law of the State of Texas and the law
of the United States applicable to transactions within said State.


 


23.                                 Counterparts.
This Agreement may be executed in any number of counterparts with the same
effect as if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.


 


24.                                 Successors
and Assigns. All of the foregoing
terms and provisions of this Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns.


 


25.                                 Recitals.
The recitals contained herein are incorporated into this Agreement by
reference.


 


26.                                 Headings.
The paragraph headings set forth in this Agreement are for the convenience of
the parties only, and shall in no way enlarge or limit the scope or meaning of
the various and several paragraphs in this Agreement.


 


27.                                 Notice
of No Oral Agreements. Borrower, Guarantors and Lender hereby take notice
of and agree to the following:


 


A.                                   PURSUANT TO SUBSECTION 26.02(b) OF THE TEXAS BUSINESS AND COMMERCE
CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED THEREIN EXCEEDS $50,000 IN
VALUE IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE
PARTY TO BE BOUND OR BY THAT PARTY’S AUTHORIZED REPRESENTATIVE.


 


B.                                     PURSUANT TO SUBSECTION 26.02(c) OF THE TEXAS BUSINESS AND COMMERCE
CODE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE LOAN DOCUMENTS SHALL BE
DETERMINED SOLELY FROM THE LOAN DOCUMENTS, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN DOCUMENTS.


 


C.                                     THE LOAN DOCUMENTS AND THIS AGREEMENT REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES THERETO. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


15
















 


IN WITNESS WHEREOF, this Agreement is executed
effective as of the date first above written.


 


	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK,

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Daniel P. Fryman

  	
   

  
	
   

  	
  Name:

  	
  Daniel
  P. Fryman

  	
   

  
	
   

  	
  Title:

  	
  SVP

  	
   

  
						



 


 


	
   

  	
  ORIGINAL BORROWER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FRISCO SQUARE LAND, LTD.,

  
	
   

  	
  a
  Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Fairways
  FS Land, LLC

  
	
   

  	
   

  	
  a
  Texas limited liability company,

  
	
   

  	
   

  	
  Its
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  James Leslie

  	
   

  
	
   

  	
   

  	
  Name:

  	
  James
  Leslie

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Mgr of GP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BHFS I,
  LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Executive
  Vice President – Corporate Development

  	
   

  
	
   

  	
   

  	
  &
  Legal and Secretary

  	
   

  
								



 


16

















 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the 3rd
day of August 2007, by Dan P. Fryman, the SVP of COMERICA BANK, on behalf of
said Bank.


 


	
   

  	
  /s/ Allene
  Medlock

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
  11-14-07

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
  Allene Medlock

  
				



 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was
acknowledged before me on August 1, 2007 by James C. Leslie, Manager of
Fairways FS Land, LLC, a Texas limited liability company, in its capacity as
the general partner of FRISCO SQUARE LAND,
LTD., a Texas limited partnership, on behalf of said limited
liability company and partnership.


 


 


	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
   

  
				



 


17

















 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was
acknowledged before me on August 2, 2007 by Gerald J. Reihsen, III, the
Executive Vice President – Corporate Development & Legal and Secretary of BHFS I, LLC, a Delaware
limited liability company behalf of said limited liability company.


 


 


	
   

  	
   /s/ Catherine E. Mea

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires: 

  	
  7/26/08

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary: 

  	
  Catherine E. Mea

  
				



 


18

















 


ACKNOWLEDGEMENT
AND AGREEMENT OF GUARANTORS


 


Each of the undersigned Guarantors hereby executes
this Agreement for the purpose of acknowledging and agreeing to the provisions
of this Agreement.


 


 


	
   /s/ Cathy R. Sweeney

  	
   

  	
   /s/ James C. Leslie

  
	
  CATHY R. SWEENEY

  	
   

  	
  JAMES C. LESLIE

  
	
   

  	
   

  	
   

  
	
  16250 Dallas
  Parkway, Suite 102 

  Dallas, Texas 75248

  	
   

  	
  16250 Dallas
  Parkway, Suite 102 

  Dallas, Texas 75248

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   /s/ David F. Stringfield

  	
   

  	
   /s/ A. Bryant Bryan

  
	
  DAVID F.
  STRINGFIELD

  	
   

  	
  A. BRANT BRYAN

  
	
   

  	
   

  	
   

  
	
  16250 Dallas
  Parkway, Suite 102 

  	
   

  	
  16250 Dallas
  Parkway, Suite 102 

  
	
  Dallas, Texas
  75248

  	
   

  	
  Dallas, Texas
  75248

  



 


 


	
   

  	
  BEHRINGER HARVARD OPPORTUNITY REIT I, 

  INC.

  
	
   

  	
  a
  Maryland corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Executive
  Vice President – Corporate Development

  	
   

  
	
   

  	
   

  	
  &
  Legal and Secretary

  	
   

  



 


19

















 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the 1st
day of August 2007, by Cathy R. Sweeney.


 


 


	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
   

  
				



 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the 1st
day of August 2007, by James C. Leslie.


 


 


	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
   

  
				



 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the 1st
day of August 2007, by David F. Stringfield.


 


	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
   

  
				



 


20

















 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was acknowledged before me on the 1st
day of August 2007, by A. Brant Bryan.


 


	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
   

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
   

  
				



 


	
  STATE
  OF TEXAS

  	
  §

  
	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
  §

  



 


This instrument was
acknowledged before me on August 2, 2007 by Gerald J. Reihsen, III, the
Executive Vice President – Corporate Development & Legal and Secretary BEHRINGER HARVARD OPPORTUNITY REIT I, INC., a Maryland corporation, on behalf of said
corporation.


 


 


	
   

  	
   /s/ Catherine E. Mea

  
	
   

  	
  Notary Public,
  State of Texas

  
	
   

  	
   

  
	
   

  	
  My Commission
  Expires:

  	
  7/26/08

  
	
   

  	
   

  
	
   

  	
  Printed Name of
  Notary:

  	
  Catherine E. Mea

  
				



 


21