Exhibit 10.12


 


CONSENT
AGREEMENT


(ML-CFC
2006-4; Loan Nos. 550203999 and 550204000)


 


THIS CONSENT
AGREEMENT (the “Agreement”)
is executed and effective as of this 1st day of November, 2007 (the “Effective Date”), by and between LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS
OF ML-CFC COMMERCIAL MORTGAGE TRUST 2006-4, COMMERCIAL MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-4 (“Lender”),
having an address at c/o Wells Fargo Commercial Mortgage Servicing, 1320 Willow
Pass Road, Suite 210, Concord, California 94520 Re: ML-CFC 2006-4; Loan Nos.
550203999 and 550204000, 10/120 SOUTH RIVERSIDE FEE LLC, a Delaware limited liability company (“Fee Borrower”), and 10/120 SOUTH RIVERSIDE PROPERTY LLC, a
Delaware limited liability company (“Leasehold
Borrower”) (Fee Borrower and Leasehold Borrower shall hereinafter be
referred to individually and collectively as “Borrower”),
both having an address at c/o Behringer Harvard Operating Partnership I LP, 15601
Dallas Parkway, Suite 600, Addison, Texas 75001.


 


PRELIMINARY
STATEMENT


 


A.                                   Lender
is the owner and holder of a loan in the original principal amount of $225,000,000.00
originally made to Borrower (“Loan”) by Merrill
Lynch Mortgage Lending, Inc. (“Original Lender”)
on October 3, 2006.


 


B.                                     Lender
is the current owner and holder of the Loan and the loan documents described in
Exhibit A attached hereto
(collectively, the “Loan Documents”)
evidencing and/or securing the Loan. The Loan is secured by, among other
things, the property described in and encumbered by the Security Instrument described
in Exhibit A.


 


C.                                     Fee
Borrower is the current owner of fee title to that certain real property (the “Land”) commonly known as 10 and 120 South Riverside located
in the City of Chicago, County of Cook, State of Illinois, as more particularly
described in the Loan Documents (the Land is hereinafter sometimes referred to
as the “Fee  Property”).


 


D.                                    Leasehold
Borrower is the current owner of leasehold title to the Land and the buildings
and improvements thereon (the “Improvements”) commonly
known as 10 and 120 South Riverside located in the City of Chicago, County of
Cook, State of Illinois, as more particularly described in the Loan Documents (the
“Leasehold Property”) (the Fee Property
and the Leasehold Property shall hereinafter be referred to individually and
collectively as the “Property”).


 


E.                                      Borrower
has requested Lender’s consent to BCSP IV U.S. Investments, L.P., a Delaware
limited partnership and indirect parent of Borrower (“Seller”),
selling and transferring (the “Sale”)
100% of the common stock of 10/120 South Riverside Illinois Business Trust, a
Maryland business trust and Fee Borrower’s and Leasehold Borrower’s sole member
(“Borrower Sole Member”), to Behringer
Harvard 10/120 South Riverside Plaza, LLC, a Delaware limited liability company
(“Purchaser”), pursuant to the
terms of that certain Stock Purchase and Sale Agreement, dated as of August 15,
2007 (as amended, the “Purchase Agreement”),
by and between Seller and Behringer Harvard 


 

















 


Operating Partnership I LP, a Texas limited
partnership (“Original Purchaser”), which
Original Purchaser assigned its interests in the Purchase Agreement as to the
Sale of Borrower Sole Member to Purchaser.


 


F.                                      Immediately
after the Sale, Borrower Sole Member will merge with and into Purchaser (the “Merger”) with Purchaser being the sole survivor and becoming
the sole member of Borrower by virtue of the Merger (the Sale and the Merger
shall be referred to herein collectively as the “Transfer”).


 


G.                                     The
Loan Documents do not permit the Transfer without first obtaining Lender’s
written consent.


 


H.                                    Borrower
has requested the Lender’s consent to the Transfer and subject to the terms
hereinafter set forth Lender has agreed to consent to the Transfer.


 


NOW, THEREFORE,
in consideration of the foregoing premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto, intending to be legally bound hereby, agree as follows:


 


ARTICLE 1



BORROWER ACKNOWLEDGMENTS, WARRANTIES,

REPRESENTATIONS AND COVENANTS


 


As a material inducement to Lender to enter
into this Agreement and to consent to the Transfer, Borrower, on behalf of
itself and each of the Borrower Parties (as hereinafter defined),  acknowledges, represents, warrants, covenants
and agrees to and with Lender jointly and severally as follows:


 


1.1                                 Incorporation
of Recitals. All of the facts set forth in the Preliminary
Statement of this Agreement are true and correct and incorporated into this
Agreement by this reference.


 


1.2                                 Authority
of Borrower.


 


(a)                                  Each of Fee Borrower
and Leasehold Borrower is a duly organized, validly existing limited liability
company in good standing under the laws of the State of Delaware and each is authorized to conduct business in the State of
Illinois. Purchaser is the sole equity member of Fee Borrower and Leasehold
Borrower and is a duly organized, validly existing real estate
investment trust in good standing under the laws of the State of Delaware. The undersigned (“Authorized Officer”) is an authorized officer of Purchaser. Authorized
Officer, acting alone without the joinder of any other party, has obtained or
concurrently herewith is obtaining any requisite consent and has the power and
authority to execute this Agreement, in Purchaser’s capacity as the manager of
Borrower, and to bind Borrower under this Agreement. The execution and delivery
of, and performance under, this Agreement by Borrower has been duly and
properly authorized pursuant to all requisite company action and will not (i) violate
any provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Borrower or Purchaser or the 


 


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certificate of formation, the limited
liability company agreement or any other organizational document of Borrower or
Purchaser, or (ii) result in a breach of or constitute or cause a default
under any indenture, agreement, lease or instrument to which Borrower or Purchaser
is a party or, to the best of Borrower’s knowledge, by which the Property may
be bound or affected.


 


(b)                                 The organizational
documents of Fee Borrower and Leasehold Borrower have not been modified since
the loan origination and prior to the Transfer and, other than amendments
relating to the Transfer approved by Lender or specifically permitted under the
Loan Documents, there will be no amendments or modifications to the organizational
documents of Fee Borrower or Leasehold Borrower after the Effective Date except
to the extent permitted under the Loan Documents.


 


1.3                                 Affirmation
of Obligations of Borrower. Borrower hereby affirms the
existence and the validity of its obligations and the other provisions in the
Loan Documents in accordance with their respective terms and conditions. Borrower
further confirms that the Transfer shall not affect its obligations under, and
Borrower agrees to continue to abide by and be bound by all of the terms of,
the Loan Documents to which it is a party, including but not limited to, the
representations, warranties, covenants, assurances and indemnifications
therein. Borrower further agrees to pay, perform, and discharge each and every
obligation of payment and performance under, pursuant to and as set forth in
the Note (as defined in Exhibit A), the Security Instrument and the other
Loan Documents at the time, in the manner and otherwise in all respects as
therein provided. As of the date hereof, Borrower has no defenses, setoffs,
claims, counterclaims or causes of action of any kind or nature whatsoever
against Lender or any subsidiary or affiliate of Lender or any of Lender’s
predecessors in interest, and all of the past, present and future officers,
directors, contractors, employees, agents, servicers (including, but not
limited to, LNR Partners, Inc.), attorneys, representatives, participants,
successors and assigns of Lender and Lender’s predecessors in interest
(collectively, “Lender Parties”)
with respect to (a) the Loan, (b) the Loan Documents, (c) the
Debt (as such term is defined in the Loan Agreement), (d) any other
documents or instruments now or previously evidencing, securing or in any way
relating to the Loan, (e) the administration or funding of the Loan, or (f) the
Property, including but not limited to its development, operation or financing.
To the extent Borrower would be deemed to have any such defenses, setoffs,
claims, counterclaims or causes of action as of the date hereof, Borrower, by
its execution hereof, knowingly waives and relinquishes them.


 


1.4                                 Transfer of Interests. Except as
permitted in this Agreement, under the other Loan Documents or otherwise
permitted by Lender, since the date of funding of the Loan, no holder of a
direct or indirect interest in Borrower has pledged, sold, conveyed or
otherwise encumbered or transferred all or any part of its beneficial interests
in Borrower and except for the Transfer, will not pledge, sell, convey or
otherwise encumber or transfer all or any part of the direct or indirect
interests in Borrower, without the prior written consent of Lender to the
extent required by the Loan Documents.


 


1.5                                 No Default. To Borrower’s knowledge, no
event, fact or circumstance has occurred or failed to occur which constitutes,
or with the lapse or passage of time, giving of notice or both, could
constitute a default as provided in the Security Instrument or other Loan
Documents.


 


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1.6                                 Legal
Proceedings. Fee Borrower is the current owner of fee title of
the Property. Leasehold Borrower is the current owner of leasehold title of the
Property. There are no pending or, to Borrower’s knowledge, threatened suits,
judgments, arbitration proceedings, administrative claims, executions or other
legal or equitable actions or proceedings against Borrower or any of the
Property, which have not been disclosed to Lender in writing and which, if
adversely determined, would materially impair either the Property or Borrower’s
ability to perform its covenants or obligations hereunder or under the Loan
Documents.


 


1.7                                 Liens.
There are no: (a) subordinate liens of any kind covering or relating to
the Property or Borrower’s interest in the Property except for Permitted
Encumbrances (as defined in the Loan Agreement) and Borrower has not received
written notice, and has no actual knowledge of, any mechanics’ liens or liens
for unpaid taxes or assessments encumbering the Property or any portion thereof
other than those not yet due and payable, nor has notice of a lien or notice of
intent to file a lien been received by Borrower, or (b) pending or, to the
best of knowledge of Borrower, threatened condemnation proceedings or
annexation proceedings affecting the Property, nor any agreements to convey any
portion of the Property, or any rights thereto to any person or entity,
including, without limitation, any government or governmental agency.


 


1.8                                 Financial
Statements. To Borrower’s knowledge, the financial statements
and other information (Financial Statements”)
of Behringer Harvard REIT I, Inc. (“Principal”)
delivered to Lender are true, complete and accurate in all material respects
and accurately represent the financial condition of the Principal as of the
date thereof. All of the assets shown on the Principal’s Financial Statement
are owned by the Principal as its sole and separate property, and not jointly
with any other person or entity, except as otherwise reflected in the Financial
Statements. There has not been any material adverse change to the financial
condition of the Principal between the dates of the Financial Statements
delivered to Lender in connection with the Transfer and the date of this
Agreement. Borrower acknowledges that the Financial Statements have been
provided to Lender to induce Lender to enter into this Agreement and are being
relied upon by Lender for such purposes.


 


1.9                                 Organizational
Charts. The organizational charts attached hereto as Exhibit B are a true and correct representation of
Borrower’s ownership structure immediately prior to and immediately following
the consummation of the Transfer.


 


1.10                           Air
Rights Lease. The Air Rights Lease (as such term is defined in
the Security Instrument) is currently in full force and effect and is
unmodified. All representations and warranties of Borrower with respect to the
Air Rights Lease as set forth in the Loan Documents have been duly complied
with and are true, correct and complete in all respects as of the date hereof. Borrower
is unaware of any default under the Air Rights Lease. Any and all consents and
approvals required to be obtained under the Air Rights Lease for consummation
of the Transfer have been obtained and delivered to Lender.


 


1.11                           Rent Roll.
The Rent Roll (“Rent Roll”) attached hereto and
made a part hereof as Exhibit C is
true, complete and accurate in all material respects and reflects all of the
Leases (as defined in the Loan Agreement) affecting the Property.


 


1.12                           REOA.
To Borrower’s knowledge, the REOA (as such term is defined in the Security
Instrument) is currently in full force and effect and is unmodified. Borrower
is unaware 


 


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of any
default under the REOA. Any and all consents and approvals required to be
obtained under the REOA for consummation of the Transfer have been obtained and
delivered to Lender.


 


1.13                           Bankruptcy Proceedings. Borrower has not
been a party to any Debtor Proceeding (as hereinafter defined) within seven (7) years
prior to the date of this Agreement or has any intent to (a) file any
voluntary petition under any Chapter of the Bankruptcy Code, Title 11, U.S.C.A.
(“Bankruptcy Code”), or in any
manner to seek any proceeding for relief, protection, reorganization,
liquidation, dissolution or similar relief for debtors (“Debtor Proceeding”) under any local, state,
federal or other insolvency law or laws providing relief for debtors, (b) directly
or indirectly to cause any involuntary petition under any Chapter of the
Bankruptcy Code to be filed against Borrower or (c) directly or indirectly
to cause the Property or any portion or any interest of Borrower or in the
Property to become the property of any bankrupt estate or the subject of any
Debtor Proceeding.


 


1.14                           Defaults on Other Indebtedness. To
Borrower’s knowledge, Borrower has not defaulted under its obligations with
respect to any other indebtedness.


 


1.15                           Inspections.
Borrower has obtained written inspection reports relating to the Property in
connection with the Transfer (collectively, the “Reports”),
including without limitation, that certain Survey dated October 4, 2007,
prepared by Sarko Engineering Inc. under Job No. 40796, that certain
Survey dated October 4, 2007, prepared by Sarko Engineering Inc. under Job
No. 40798, that certain Property Condition Report dated October 12,
2007, prepared by LandAmerica Assessment Corporation, and those two certain
Reports of Environmental Site Assessment dated August, 2007, prepared by Pond,
Robinson & Associates, LP under Project No. 072761 (collectively,
the “New Environmental Reports”). Borrower has
not obtained any tenant estoppel certificates from the tenants located at the Property
that have not been delivered to Lender.


 


1.16                           Acknowledgment of Indebtedness. Borrower
confirms that, and by its execution hereof, Lender confirms, represents, and
warrants to Borrower to Lender’s actual knowledge that as of October 30, 2007: (a) the
outstanding principal balance of Note A (as defined in Exhibit A) was $200,000,000.00; and (b) the
escrow/reserve account balances were as follows: (i) a rollover reserve in
the amount of $4,039,563.21; and (ii) a tenant reserve balance in the
amount of $8,821,003.31. In
addition, Borrower confirms that, and by its execution hereof, Lender confirms,
represents, and warrants to Borrower to Lender’s actual knowledge that as of October 30, 2007, the outstanding
principal balance of Note B (as defined in Exhibit A) was $25,000,000.00. In the event of an
error or omission of the foregoing information, Lender does not in any way
prejudice its right and entitlement to all monies lawfully due Lender. Borrower
acknowledges and agrees that the Loan, as evidenced and secured by the Loan
Documents and described above, is a valid and existing indebtedness payable by
Borrower to Lender. By its execution hereof, Lender represents and warrants to
Borrower that to Lender’s actual knowledge, (i) the foregoing amounts are
correct, (ii) all interest payments due under the Loan Documents through
and including October 31, 2007, have been paid and the next payment of interest
is due December 1, 2007, (iii) Lender has not issued any written
notices of default to Borrower or Original Indemnitor (as defined on Exhibit A)
which have not been cured, and (iv) there are no existing material
defaults under the Loan Documents.


 


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1.17                           Consents. Borrower is not required to
obtain the consent of any other person or entity for the Transfer or, to the
extent that the consent of another person or entity is required for the
Transfer, such consent has been obtained and delivered to Lender.


 


1.18                           SPE Status. The Transfer will not
affect the Borrower’s status as a single purpose, bankruptcy remote entity as
described in, or cause a violation of any of the provisions of Section 3.1.24
of the Loan Agreement (as defined in Exhibit A).


 


1.19                           Non-Consolidation
Opinion Letter. None of the assumptions in the Substantive
Non-Consolidation Opinion Letter dated as of the Effective Date issued by Richards,
Layton and Finger, P.A., are untrue in any material respect.


 


1.20                           Assets of
Borrower. The only assets of Fee Borrower are and will be the Fee
Property, lessor’s interest in the Air Rights Lease, incidental personal or
intangible property, Permitted Investments (as defined in the Cash Management
Agreement [as defined on Exhibit A]) and cash or cash equivalents. The only
assets of Leasehold Borrower are and will be the Leasehold Property, lessee’s
interest in the Air Rights Lease, the Leases, incidental personal or intangible
property, Permitted Investments and cash or cash equivalents.


 


1.21                           No Modification. After the Transfer,
all of the terms, covenants and conditions of the Loan Documents shall continue
in full force and effect, unmodified against Borrower, except as modified
pursuant to the terms of this Agreement.


 


1.22                           Transfer
Documents. Contemporaneously with the execution and delivery of
this Agreement and as a material inducement to Lender to enter into this
Agreement, Borrower shall have delivered or caused to be delivered such other
documents, certificates, title insurance endorsements, legal opinions and UCC
searches as Lender may reasonably require.


 


1.23                           Property
Management. Leasehold Borrower is a party to that certain Fourth
Amended and Restated Property Management and Leasing Agreement pursuant to a
Partial Assignment and Assumption of Amended and Restated Property Management
and Leasing Agreement dated as of the Effective Date (the “New
Management Agreement”) whereby HPT Management Services LP (“Property Manager”) shall manage the Property. The term “Management
Agreement” or “management agreement” in the Loan Documents shall hereafter
refer to the New Management Agreement. Borrower covenants and agrees to comply
with and to cause the Property Manager to comply with all terms and conditions
of the Loan Documents concerning the management of the Property, including
without limitation the obligation to obtain Lender’s consent to the management
of the Property by any entity other than Property Manager, provided that Lender
hereby consents to Property Manager subcontracting with Jones Lang LaSalle for
the management of the Property. Borrower shall cause Property Manager to
execute and deliver to Lender on the Effective Date a Subordination of Property
Management Agreement and Management Fees in form and substance acceptable to
the Lender.


 


1.24                           Prohibited
Person. Borrower (a) is not an entity or person (i) that
is listed in the Annex to, or is otherwise subject to the provisions of,
Executive Order 13224, issued on September 24, 2001 (“EO13224”), (ii) whose name appears on
the United States Treasury Department’s Office of Foreign Assets Control (“OFAC”) most current list of “Specifically Designated National and Blocked Persons”
(which list may be published from time to time in 


 


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various
media including, but not limited to, the OFAC website,
http:www.treas.gov/ofac/t11sdn/pdf) (iii) who commits, threatens to commit
or supports “terrorism”, as that
term is defined in EO 13224, or (iv) who, to the knowledge of Borrower, is
otherwise affiliated with any entity or person listed above (any and all
parties or persons described in clauses [i] — [iv] above are herein
referred to as a “Prohibited Person”);
(b) has not knowingly conducted any business, nor engaged in any
transaction or dealing, with any Prohibited Person, including,  but not limited to, the making or receiving
of any contribution of funds, goods, or services, to or for the benefit of a
Prohibited Person or (c) has not knowingly engaged in or conspired to
engage in any transaction that evaded or avoided, or had the purpose of evading
or avoiding, or attempted to violate, any of the prohibitions set forth in
EO13224. Borrower further covenants and agrees to deliver (from time to time)
to Lender any such certification as may be requested by Lender in its reasonable
discretion, confirming that, based on reasonable inquiry (i) neither
Borrower nor Principal is a Prohibited Person and (ii) neither Borrower
nor Principal has (a) knowingly conducted any business, nor engaged in any
transaction or dealing, with any Prohibited Person, including,  but not limited to, the making or receiving
of any contribution of funds, goods, or services, to or for the benefit of a
Prohibited Person or (b) knowingly engaged in or conspired to engage in
any transaction that evaded or avoided, or had the purpose of evading or
avoiding, or attempted to violate, any of the prohibitions set forth in
EO13224.


 


1.25                           Reaffirmations of Borrower. Borrower
reaffirms, renews, ratifies and confirms the truth and accuracy of all
representations and warranties set forth in the Loan Documents, as if made on
the Effective Date, except to the extent such representations or warranties
were specific to an earlier date, except to the extent of changes in
representations and warranties resulting from matters not prohibited by the
Loan Documents or permitted hereunder and except to the extent modified as
reflected on Exhibit D attached hereto. Borrower acknowledges and agrees
that nothing contained in this Agreement, nor the Transfer, shall or shall be
deemed to release, impair, limit, abrogate or reduce in any manner or to any
extent Borrower’s or, except as otherwise provided in the Joinder of Original
Indemnitor attached hereto, any other party of its obligations, agreements,
duties and/or liabilities under the Loan Documents, all of which remain in full
force and effect.


 


1.26                           Fees/Expenses. Simultaneously with or
prior to the execution hereof, Borrower shall pay to or have paid Lender: (i) an
assumption fee equal to $75,000.00; (ii) an administration fee equal to
$125.00; (iii) a flood determination fee equal to $30.00; (iv) a ChoicePointe
credit review fee equal to $602.00; and (v) an insurance review fee equal
to $400.00, which Borrower
agrees are fees for new consideration and are not interest charged in connection
with the Loan.


 


1.27                           Same Indebtedness; Priority of Liens Not Affected.
This Agreement and the execution of the other documents required to be executed
in connection herewith do not constitute the creation of a new debt or the
extinguishment of the debt evidenced by the Loan Documents, nor will they in
any way affect or impair the liens and security interests created by the Loan
Documents. Borrower agrees that the lien and security interests created by the
Security Instrument continue to be in full force and effect, unaffected and
unimpaired by this Agreement and that said liens and security interests shall
so continue in their perfection and priority until the Indebtedness (as defined
in the Loan Agreement) secured by the Loan Documents is fully discharged.


 


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1.28                           Payment of Transaction Costs and Expenses.
Borrower shall pay at the time of execution of this Agreement by Lender the
legal fees and disbursements of Lender’s counsel, Bilzin Sumberg Baena Price &
Axelrod LLP, in connection with the preparation of this Agreement.


 


1.29                           Representations
and Warranties. No representation or warranty of Borrower made
in this Agreement contains any untrue statement of material fact or
intentionally omits to state a material fact
necessary in order to make such representations and warranties not misleading
in light of the circumstances under which they are made. Any breach by Borrower
or New Indemnitor of any of the representations, warranties or covenants set
forth herein or in the New Indemnitor Joinder hereto, after expiration of all
applicable notice and cure periods, shall constitute an Event of Default under
the Security Instrument, the Note and the other Loan Documents.


 


1.30                           Further Assurances. Borrower shall
execute and deliver to Lender such agreements, instruments, documents,
financing statements and other writings as may be reasonably requested from
time to time by Lender to consummate the transactions contemplated by this
Agreement.


 


ARTICLE 2



ADDITIONAL PROVISIONS


 


2.1                                 No Other
Material Documents. Other than those delivered to Lender, no
other material documents were executed in connection with the Transfer that
relate to Borrower or the Property.


 


2.2                                 Consent
of Lender. Subject to the terms of this Agreement, Lender hereby
consents to the Transfer which has occurred as of the Effective Date. Borrower
agrees that this Agreement shall not be deemed an agreement by Lender to
consent to any other action in connection with the Loan or the Property
requiring Lender consent under the Loan Documents nor shall such consent
constitute a consent, waiver or modification of any right, remedy or power of
Lender under the applicable Loan Documents or otherwise.


 


2.3                                 UCC
Filings. Borrower hereby grants and confirms unto Lender a first
lien priority interest in all of Borrower’s personal property and all of the
fixtures located at the Property to the maximum extent permitted by the Uniform
Commercial Code (“UCC”). Borrower
hereby consents to the filing of any financing statements or UCC forms required
to be filed in the applicable states or any other applicable filing office,
including, but not necessarily limited to, the state of organization of
Borrower and in the Records (as defined in Exhibit A) (collectively “Filings”) in order to perfect or continue the perfection of
said interest and, notwithstanding anything contained in any of the Loan
Documents to the contrary, in accordance with the UCC, as amended subsequent to
the making of the Loan, said Filings may be made by Lender without the consent
or signature of the Borrower.


 


2.4                                 REIT
Transfers. Notwithstanding anything to the contrary contained in
the Loan Documents, Lender acknowledges and agrees that Behringer Harvard REIT
I, Inc. (“REIT”), the Principal referred to
in this Agreement, is a public company registered under the 


 


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Securities
Act and that the issuance, sale or transfer of interests in REIT shall not be
deemed a sale or transfer of a beneficial interest in Borrower for the purposes
of the Loan Documents, provided however that (i) REIT remains a public
company registered under the Securities Act, (ii) Behringer Harvard 10/120
South Riverside Plaza, LLC, a Delaware limited liability company, remains the
sole member of Borrower, (iii) Behringer Harvard Operating Partnership I LP,
a Texas limited partnership, continues to own fifty percent (51%) or more of
the interests in Borrower, (iv) REIT remains in control of Borrower, (v) Behringer
Harvard Holdings, LLC, a Delaware limited liability company, remains in control
of REIT, and (vi) REIT continues to be the guarantor and indemnitor with respect
to Borrower’s non-recourse obligations contained in the Guaranty pursuant to
that certain New Indemnitor Joinder attached hereto. For the purposes of this
paragraph, the term “control” shall
mean the power to direct the management and policies of a party, directly or
indirectly, whether through the ownership of voting securities or other
beneficial interests, by contract or otherwise.


 


2.5                                 Modification to Loan Documents.


 


(a)                                  All references to the
term “Beacon Entity” in the Loan
Agreement are hereby deleted and replaced with Behringer Harvard Operating
Partnership I LP, a Texas limited partnership.


 


(b)                                 Notwithstanding anything
contained in the Loan Documents to the contrary, including without limitation Section 8.2
of the Loan Agreement, the Third Party Limited Partners (as defined below) shall
have the right to sell, convey or transfer their interests in Behringer Harvard
Operating Partnership I LP, a Texas limited partnership (“Behringer
Harvard OP”), without notice to Lender and without Lender’s consent so
long as the Third Party Limited Partners do not in the aggregate own more than 10%
of the limited partnership interests in Behringer Harvard OP. The term “Third Party Limited Partners” as used herein shall mean and refer
to the third parties that (a) are not affiliated with any Behringer Harvard
entity and (b) represent the minority owners of the limited partnership
interests in Behringer Harvard OP.


 


2.6                                 References to Loan Documents. All
references to the term “Loan Documents”
in the Security Instrument and the other Loan Documents shall hereinafter be
modified to include: (a) the Security Instrument and other Loan Documents
described therein; (b) this Agreement; and (c) any and all of the
documents now or hereafter executed with or in favor of Original Lender or
Lender by Borrower, Borrower and others, and/or any other party, which
evidences, secures or guaranties all or any portion of the payments due under
the Note or otherwise is executed and/or delivered in connection with the Note,
the Security Instrument or this Agreement. All references herein to the term “Loan Documents” shall mean and refer to the
Loan Documents defined and affirmed herein and the other Loan Documents defined
in the Security Instrument.


 


ARTICLE 3



MISCELLANEOUS PROVISIONS


 


3.1                                 Relationship
with Loan Documents. To the extent that this Agreement is
inconsistent with the Loan Documents, this Agreement will control and the Loan
Documents will 


 


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be
deemed to be modified hereby. Except as modified hereby, the Loan Documents
shall remain unchanged and in full force and effect.


 


3.2                                 No Limitation of Remedies. No right,
power or remedy conferred upon or reserved to or by Lender in this Agreement is
intended to be exclusive of any other right, power or remedy conferred upon or
reserved to or by Lender under this Agreement, the Loan Documents or at law,
but each and every remedy shall be cumulative and concurrent, and shall be in
addition to each and every other right, power and remedy given under this
Agreement, the Loan Documents or now or subsequently existing at law.


 


3.3                                 No Waivers. Except as otherwise expressly
set forth in this Agreement, nothing contained in this Agreement shall
constitute a waiver of any rights or remedies of Lender under the Loan
Documents or at law. No delay or failure on the part of any party hereto in the
exercise of any right or remedy under this Agreement shall operate as a waiver,
and no single or partial exercise of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy. No
action or forbearance by any party hereto contrary to the provisions of this
Agreement shall be construed to constitute a waiver of any of the express
provisions hereof. Any party hereto may in writing expressly waive any of such
party’s rights under this Agreement without invalidating this Agreement.


 


3.4                                 Successors or Assigns. Whenever any
party is named or referred to in this Agreement, the heirs, executors, legal
representatives, successors, successors-in-title and assigns of such party
shall be included. All covenants and agreements in this Agreement shall bind
and inure to the benefit of the heirs, executors, legal representatives,
successors, successors-in-title and assigns of the parties, whether so
expressed or not.


 


3.5                                 Construction of Agreement. Each party
hereto acknowledges that it has participated in the negotiation of this
Agreement and no provision shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured,
dictated or drafted such provision. Borrower at all times has had access to an
attorney in the negotiation of the terms of and in the preparation and
execution of this Agreement. Borrower has had the opportunity to review and
analyze this Agreement for a sufficient period of time prior to execution and
delivery. No representations or warranties have been made by or on behalf of
Lender, or relied upon by Borrower, pertaining to the subject matter of this
Agreement, other than those set forth in this Agreement. All prior statements,
representations and warranties, if any, are totally superseded and merged into
this Agreement, which along with the Loan Documents represent the final and
sole agreement of the parties with respect to the subject matters contained
herein. All of the terms of this Agreement were negotiated at arm’s length, and
this Agreement was prepared and executed without fraud, duress, undue influence
or coercion of any kind exerted by any of the parties upon the others. The
execution and delivery of this Agreement is the free and voluntary act of
Borrower.


 


3.6                                 Invalid Provision to Affect No Others. If,
from any circumstances whatsoever, fulfillment of any provision of this
Agreement or any related transaction at the time performance of such provision
shall be due, shall involve transcending the limit of validity presently
prescribed by any applicable usury statute or any other applicable law, with
regard to obligations of like character and amount, then ipso facto, the
obligation to be fulfilled shall be reduced to the 


 


10

















 


limit
of such validity. If any clause or provision operates or would prospectively
operate to invalidate this Agreement, in whole or in part, then such clause or
provision only shall be deemed deleted, as though not contained, and the
remainder of this Agreement shall remain operative and in full force and
effect.


 


3.7                                 Notices. Except as otherwise
specifically provided to the contrary, any and all notices, elections, approvals,
consents, demands, requests and responses (“Communications”)
permitted or required to be given under this Agreement and the Loan Documents
shall be effective if in writing, signed by or on behalf of the party giving
the same, and sent by certified or registered mail, postage prepaid, return
receipt requested, or by hand delivery or overnight courier service (such as
Federal Express), to the party to be notified at the address of such party set
forth below or at such other address within the continental United States as
such other party may designate by notice specifically designated as a notice of
change of address and given in accordance with this Section. Any Communications
shall be effective upon the earlier of their receipt or three days after mailing
in the manner indicated in this Section. Receipt of Communications shall occur
upon actual delivery but if attempted delivery is refused or rejected, the date
of refusal or rejection shall be deemed the date of receipt:


 


	
  If
  to Lender:

  
	
   

  	
   

  
	
   

  	
  LaSalle Bank National Association, as
  Trustee

  
	
   

  	
  c/o Wells Fargo Commercial Mortgage
  Servicing

  
	
   

  	
  1320 Willow Pass Road, Suite 210

  
	
   

  	
  Concord, California 94520

  
	
   

  	
  Re: ML-CFC 2006-4; Loan Nos. 550203999 and 550204000

  
	
   

  	
   

  
	
  With a copy
  to:

  
	
   

  
	
   

  	
  LNR Partners, Inc.

  
	
   

  	
  1601 Washington Avenue, Suite 700

  
	
   

  	
  Miami Beach, Florida 33139

  
	
   

  	
  Attn: 

  	
  Director of Servicing

  
	
   

  	
  Re: ML-CFC 2006-4; Loan No. 550203999
  and 550204000

  
	
   

  
	
  and, if given to Borrower, must be
  addressed as follows, notwithstanding any other address set forth in the Loan
  Documents to the contrary, subject to change as provided above:

  
	
   

  	
   

  
	
   

  	
  10/120
  South Riverside Fee LLC and

  
	
   

  	
  10/120
  South Riverside Property LLC

  
	
   

  	
  c/o Behringer Harvard
  Operating Partnership I LP

  
	
   

  	
  15601 Dallas Parkway, Suite 600

  
	
   

  	
  Addison, Texas 75001

  
	
   

  	
  Attention: Jon L. Dooley and
  Andrew J. Bruce

  
	
   

  	
  Facsimile: 214-655-1610

  
	
   

  	
   

  
	
  With a copy
  to:

  
	
   

  	
   

  
	
   

  	
  Jones Day

  
	
   

  	
  27227 North Harwood Street

  
	
   

  	
  Dallas, Texas 75201-1515

  
	
   

  	
  Attention: Michelle R. Brown, Esq.
  and Mark V. Minton, Esq.

  
				



 


11

















 


	
   

  	
  Facsimile: 214-969-5100

  
	
   

  	
   

  
	
  and

  
	
   

  	
   

  
	
   

  	
  Powell
  Coleman & Arnold LLP

  
	
   

  	
  8080 North
  Central Expressway

  
	
   

  	
  Suite 1380

  
	
   

  	
  Dallas,
  Texas 75206

  
	
   

  	
  Attention:
  Patrick M. Arnold

  
	
   

  	
  Facsimile:
  214-373-8768

  



 


3.8                                 Headings; Exhibits. The headings of the
articles, sections and subsections of this Agreement are for the convenience of
reference only, are not to be considered a part of this Agreement and shall not
be used to construe, limit or otherwise affect this Agreement.


 


3.9                                 Modifications. The terms of this
Agreement may not be changed, modified, waived, discharged or terminated
orally, but only by an instrument or instruments in writing, signed by the party
against whom the enforcement of the change, modification, waiver, discharge or
termination is asserted.


 


3.10                           Time of Essence; Consents. Time is of
the essence of this Agreement and the Loan Documents. Any provisions for
consents or approvals in this Agreement shall mean that such consents or
approvals shall not be effective unless in writing and executed by Lender.


 


3.11                           Counterparts. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original, but all of which will constitute the same agreement. Any signature page of
this Agreement may be detached from any counterpart of this Agreement without
impairing the legal effect of any signatures thereon and may be attached to
another counterpart of this Agreement identical in form hereto but having
attached to it one or more additional signature pages.


 


3.12                           GOVERNING
LAW. THIS AGREEMENT WAS
NEGOTIATED IN THE STATE OF NEW YORK, AND MADE BY LENDER AND ACCEPTED BY
BORROWER IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE,
THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT REGARD TO PRINCIPLES OF CONFLICT
LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA. TO THE FULLEST
EXTENT PERMITTED BY LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES
ANY CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT AND THE NOTE, AND THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.


 


12

















 


3.13                           SUBMISSION
TO JURISDICTION. ANY LEGAL SUIT, ACTION OR
PROCEEDING AGAINST LENDER OR BORROWER ARISING OUT OF OR RELATING TO THIS
AGREEMENT MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN THE CITY OF NEW YORK, COUNTY OF NEW YORK, PURSUANT TO SECTION 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW AND, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR
HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT,
ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER DOES
HEREBY DESIGNATE AND APPOINT:


 


c/o CT
CORPORATION SYSTEM

111 EIGHTH AVENUE

NEW YORK, NEW YORK 10011


 


AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL
PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED
IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED
AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE
SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND
(III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES
TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A
SUCCESSOR.


 


3.14                           WAIVER OF TRIAL BY JURY. LENDER AND BORROWER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY
ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO
THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY
IS GIVEN KNOWING AND VOLUNTARILY BY LENDER AND BORROWER, AND IS INTENDED TO
ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
TRIAL BY JURY WOULD OTHERWISE ACCRUE. BORROWER AND LENDER EACH IS HEREBY
AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS 


 


13

















 


WAIVER BY
LENDER AND BORROWER. THIS WAIVER
IS A MATERIAL INDUCEMENT FOR LENDER AND BORROWER TO ENTER THIS AGREEMENT.


 


3.15                           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 therefore hereby incorporated herein by
reference.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


14

















 


The parties have executed and delivered this
Agreement to be effective as of the Effective Date.


 


	
   

  	
   

  	
  LENDER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LASALLE BANK NATIONAL ASSOCIATION,

  AS TRUSTEE FOR THE REGISTERED

  HOLDERS OF ML-CFC COMMERCIAL

  MORTGAGE TRUST 2006-4, COMMERCIAL

  MORTGAGE PASS-THROUGH

  CERTIFICATES, SERIES 2006-4

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  LNR Partners, Inc., a Florida
  corporation, as

  attorney-in-fact

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Randolph J. Wolpert, Vice President

  



 


	
  STATE OF FLORIDA

  	
  )

  
	
   

  	
  ) SS:

  
	
  COUNTY OF MIAMI-DADE

  	
  )

  



 


This instrument was acknowledged before me, a
notary public this         day of                ,
2007, by Randolph J. Wolpert, as Vice President of LNR Partners, Inc., a
Florida corporation, on behalf of said corporation as attorney-in-fact for LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE
REGISTERED HOLDERS OF ML-CFC COMMERCIAL MORTGAGE TRUST 2006-4, COMMERCIAL
MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-4, on behalf of the
trust. He is        personally known to
me or       has produced a driver’s license
as identification.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Notary
  Public

  
	
   

  	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  	
  My
  Commission Expires:

  	
   

  
					



 


15

















 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  10/120 SOUTH RIVERSIDE FEE LLC,
  a

  Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard 10/120 South

  Riverside Plaza, LLC, a Delaware limited

  liability company, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10/120 SOUTH RIVERSIDE PROPERTY

  LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard 10/120 South

  Riverside Plaza, LLC, a Delaware limited

  liability company, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
						



 


 


	
  STATE OF

  	
   

  	
  )

  
	
   

  	
  ) SS.:

  
	
  COUNTY OF

  	
   

  	
  )

  
				



 


This
foregoing instrument was acknowledged before me this        day
of              ,
2007, by                   ,
the                   of
Behringer Harvard 10/120 South Riverside Plaza, LLC, a Delaware
limited liability company, as manager of 10/120 SOUTH
RIVERSIDE FEE LLC,
a Delaware limited liability company, on behalf of said company. He/She
personally appeared before me, is personally known to me or produced                            as
identification.


 


	
   

  	
   

  
	
   

  	
  Notary Public, State of

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  
				



 


16

















 


	
  STATE OF

  	
   

  	
  )

  
	
   

  	
  ) SS.:

  
	
  COUNTY OF

  	
   

  	
  )

  
				



 


This
foregoing instrument was acknowledged before me this         day
of                 ,
2007, by                 ,
the                           of
Behringer Harvard 10/120 South Riverside Plaza, LLC, a Delaware
limited liability company, as manager, of 10/120 SOUTH RIVERSIDE PROPERTY LLC, a Delaware limited liability company, on behalf of said company.
He/She personally appeared before me, is personally known to me or produced                             as
identification.


 


	
   

  	
   

  
	
   

  	
  Notary Public, State of

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  
				



 


17
















 


EXHIBIT A


 


LOAN
DOCUMENTS


 


Unless otherwise indicated, each Loan Document is dated as of October 3,
2006.


 


1.               Loan Agreement (the
“Loan Agreement”) between Borrower and
Original Lender.


 


2.               Promissory Note A (the
“Note A”) in the original principal
amount of $200,000,000.00 made by Borrower to the Original Lender.


 


3.               Promissory Note B
(the “Note B”; together with Note A, the “Note”) in the original principal amount of $25,000,000.00
made by Borrower to the Original Lender.


 


4.               Fee and Leasehold
Mortgage, Assignment of Leases and Rents and Security Agreement (the “Security Instrument”) made by Borrower to Original Lender and
recorded as Document No. 0628641196 on October 13, 2006 and re-recorded
as Document No. 0705134083 on February 20, 2007  in
the Cook County Recorder of Deeds (the “Records”).


 


5.               Assignment of
Leases and Rents made by Borrower to Original Lender, and recorded as Document No. 0628641197
on October 13, 2006 and re-recorded as Document No. 0705134084 on February 20,
2007, in the Records.


 


6.               UCC Financing
Statement, recorded as Document No. 0628641198  in
the Records, reflecting Borrower, as debtor, and Original Lender, as secured
party.


 


7.               UCC Financing
Statement, recorded as Document No. 2007 2952322  with the Delaware Department of
State, reflecting Borrower, as debtor, and Original Lender, as secured
party.


 


8.               Guaranty of
Recourse Obligations (the “Guaranty”) made
by Beacon Capital Strategic Partners IV, L.P. (“Original
Indemnitor”)  for the
benefit of Original Lender.


 


9.               Environmental Indemnity
Agreement (the “Environmental Indemnity”) made by
Borrower in favor of Original Lender.


 


10.         Cash Management Agreement
(the “Cash Management Agreement”) by and
among Borrower, 10/120 South Riverside Illinois Property Manager LLC, Original
Lender and Wachovia Bank, National Association.


 

















 


EXHIBIT B


 


ORGANIZATIONAL
CHARTS


 


See Attached.


 

















 


EXHIBIT C


 


RENT ROLL


 


See Attached.


 

















 


EXHIBIT D


 


MODIFICATIONS TO REPRESENTATIONS AND WARRANTIES


 


1.               The representations
and warranties in Section 3.1.1 of the Loan Agreement are hereby modified
as follows:


 


•                  The
Borrower’s federal tax identification number is 45-0576003.


 


•                  The
Borrower’s address is 15601 Dallas Parkway, Suite 600, Addison, Texas
75001.


 


2.               The representations
and warranties in Sections 3.1.9, 3.1.19, 3.1.20 and 3.1.21 of the Loan
Agreement are modified by any disclosures set forth in the Reports. To the
extent applicable, any third party reports referenced in the Loan Documents
shall include the Reports, including, without limitation, the “Environmental
Report” referenced in the Environmental Indemnity shall include the New
Environmental Reports.


 


3.               The representations
and warranties in Section 3.1.17 of the Loan Agreement are modified by
those claims (both open and closed) made on Borrower’s insurance policies since
the date of the Loan Agreement as set forth on the loss runs and open claims
listing attached to this Agreement as Exhibit E.


 


4.               The representations
and warranties in Section 3.1.22 of the Loan Agreement are modified by any
Tenant or seller estoppel certificates delivered to Lender in connection with
this Agreement.


 


5.               The organizational
chart attached as Schedule III to the Loan Agreement is hereby deleted and
replaced with the organizational chart attached to this Agreement as Exhibit B.


 


6.               The rent roll
attached as Schedule I to the Loan Agreement is hereby deleted and
replaced with the rent roll attached to this Agreement as Exhibit C.


 


7.               The schedule of
Unfunded Tenant Allowances set forth on Schedule VI to the Loan Agreement
is hereby deleted and replaced with the schedule of Unfunded Tenant
Allowances attached to this Agreement as Schedule VI.


 


 

















 


EXHIBIT E


 


INSURANCE CLAIMS


 


See Attached.


 


2

















 


SCHEDULE VI


 


UNFUNDED TENANT ALLOWANCES


 


See Attached.


 


3

















 


JOINDER
BY AND AGREEMENT OF ORIGINAL INDEMNITOR


 


The undersigned, BEACON
CAPITAL STRATEGIC PARTNERS IV, L.P., being the Original Indemnitor
under the Guaranty executed in connection with the Loan described in the
Consent Agreement (“Agreement”) to
which this Joinder (the “Original Indemnitor
Joinder”) is attached, hereby represents and warrants to, and
acknowledges and agrees with, Lender the following:


 


1.                                       Defined Terms. All capitalized
terms used in this Original Indemnitor Joinder, unless defined herein, shall
have the meanings given such terms in the Consent Agreement.


 


2.                                       Reaffirmation of Guaranty. The
Guaranty constitutes the valid, legally binding obligation of Original Indemnitor,
enforceable against Original Indemnitor in accordance with its respective terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles (whether enforcement
is sought by proceedings in equity or at law). By Original Indemnitor’s
execution hereof, Original Indemnitor waives and releases any and all defenses,
affirmative defenses, setoffs, claims, counterclaims and causes of action of
any kind or nature which Original Indemnitor has asserted, or might assert,
against any of Lender Parties which in any way relate to or arise out of the
Guaranty or the other Loan Documents other than a defense, claim or counterclaim
that Original Indemnitor may raise in the event that any action or proceeding
is hereafter brought against Original Indemnitor by Lender in connection with
the Guaranty, this Original Indemnitor Joinder or any of the other Loan
Documents.


 


3.                                       Agreements of Original Indemnitor. Original
Indemnitor consents to the execution and delivery of the Consent Agreement by
Borrower and agrees and acknowledges that, except as set forth in paragraph 5
below, the liability of Original Indemnitor under the Guaranty shall not be
diminished in any way by the execution and delivery of the Agreement or by the
consummation of any of the transactions contemplated therein, including but not
limited to the Transfer.


 


4.                                       Authority Representations by the Original Indemnitor.
The execution and delivery of, and performance under, this Original
Indemnitor Joinder or the Guaranty by Original Indemnitor will not (a) violate
any provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to
Original Indemnitor or (b) result in a breach of or constitute or cause a
default under any indenture, agreement, lease or instrument to which Original
Indemnitor is a party.


 


5.                                       Release of Original Indemnitor under Guaranty.
Notwithstanding anything to the contrary in this Original Indemnitor
Joinder, the Guaranty or the other Loan Documents, Original Indemnitor’s
obligations hereunder and under the Guaranty shall not apply with respect to,
and by acceptance of this Joinder, Lender agrees that Original Indemnitor is
hereby released from, any and all of Original Indemnitor’s obligations (the “Guaranteed Obligations”) under the Guaranty
for acts or events occurring or obligations arising on or after the Effective Date, unless such Guaranteed
Obligations are caused by Original Indemnitor or any of its agents. 


 

















 


Notwithstanding the foregoing, Original Indemnitor shall not be
released from the environmental obligations under the Guaranty (“Environmental Indemnity Obligations Under Guaranty”)
occurring on or after the Effective Date if such Environmental Indemnity
Obligations Under Guaranty are caused by Original Indemnitor or any of its agents
or result from the existence of conditions existing prior to the Effective Date
or migrating to or from any portion of the Property prior to the Effective
Date, or result from a violation of Environmental Law (as defined in the
Environmental Indemnity) prior to the Effective Date.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


2

















 


                                                The
undersigned Original Indemnitor has executed and delivered this Original
Indemnitor Joinder to be effective as of the date of the Effective Date of the
Agreement.


 


	
  Witnesses:

  	
  ORIGINAL INDEMNITOR:

  
	
   

  	
   

  
	
   

  	
  BEACON CAPITAL STRATEGIC PARTNERS 

  IV, L.P., a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

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

  limited partnership, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  BCP Strategic Partners IV GP, LLC,

  a Delaware limited liability company,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Beacon Capital Partners, LLC,

  a Delaware limited liability

  company, its sole member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sign:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Name:  Nancy J.
  Broderick

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Title: Managing Director

  	
   

  
	
   

  	
   

  
	
  Sign:

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COMMONWEALTH OF MASSACHUSETTS)

  	
   

  
	
   

  	
  ) SS.:

  	
   

  
	
  COUNTY OF

  	
  SUFFOLK)

  	
   

  	
   

  
														



 


This foregoing instrument was acknowledged
before me this      day of                             ,
2006, by Nancy J. Broderick, as Managing Director of Beacon Capital
Partners, LLC, a Delaware limited liability company, the sole member of BCP
Strategic Partners IV GP, LLC, a Delaware limited liability company, the
general partner of BCP Strategic Partners IV, L.P., a Delaware limited
partnership, the general partner of BEACON CAPITAL STRATEGIC PARTNERS IV, L.P.,
a Delaware limited partnership. She personally appeared before me and is
personally known to me or produced a Massachusetts drivers license as
identification.


 


	
   

  	
   

  
	
   

  	
  Notary Public, State of

  	
   

  
	
   

  	
  My Commission Expires:

  	
   

  
				



 


3

















 


JOINDER
BY AND AGREEMENT OF NEW INDEMNITOR


 


The undersigned, BEHRINGER
HARVARD REIT I, INC. (“New
Indemnitor”), being the Principal referred to in the Consent Agreement
(the “Agreement”) to which this Joinder (the “New Indemnitor Joinder”) is attached,
intending to be legally bound under the terms and provisions of the Guaranty
pursuant to the provisions of this New Indemnitor Joinder, hereby represents
and warrants to and acknowledges and agrees with Lender the following:


 


1.                                      Defined Terms. All capitalized terms
used in this New Indemnitor Joinder, unless defined herein, shall have the
meanings given such terms in the Agreement.


 


2.                                         Benefit to New Indemnitor. New
Indemnitor, owning a direct and/or indirect interest in Borrower as a result of
the Transfer, shall receive a substantial benefit from Lender’s consent to the Transfer.


 


3.                                         Assumption by New Indemnitor of Guaranty. From
and after the Effective Date, New Indemnitor hereby assumes and agrees to be
liable and responsible for and bound by all of Original Indemnitor’s
obligations, agreements and liabilities, including but not limited to the jury
waiver and other waivers set forth therein, under the Guaranty, as fully and
completely as if the New Indemnitor had originally executed and delivered such
Guaranty  as the
guarantor/indemnitor thereunder. New Indemnitor further agrees to pay, perform
and discharge each and every obligation of payment and performance of any
guarantor/indemnitor under, pursuant to and as set forth in the Guaranty at the
time, in the manner and otherwise in all respects as therein provided. With
respect to the environmental obligations of New Indemnitor under the Guaranty,
the liability of New Indemnitor shall be joint and several with that of Borrower
and shall not be limited to environmental obligations occurring from and after
the Effective Date.


 


4.                                         Confirmation of Representations. By its
execution hereof, New Indemnitor confirms the representations and warranties
and agrees to the covenants regarding New Indemnitor set forth in the
Agreement.


 


5.                                         Authority Representations by New Indemnitor.
The execution and delivery of this New Indemnitor Joinder, and performance
by New Indemnitor under the New Indemnitor Joinder and the Guaranty will not (a) violate
any provision of any law, rule, regulation, order, writ, judgment, injunction,
decree, determination or award presently in effect having applicability to New
Indemnitor or (b) result in a breach of or constitute or cause a default
under any indenture, agreement, lease or instrument to which New Indemnitor is
a party.


 


6.                                         Notices to New Indemnitor. From and
after the Effective Date, Lender shall deliver any notices to New Indemnitor
which are required to be delivered pursuant to the Guaranty, or are otherwise
delivered by the Lender thereunder at Lender’s sole discretion, to the New
Indemnitor at the following address:


 


Behringer Harvard REIT I, Inc.

c/o Behringer Harvard Operating Partnership I LP

15601 Dallas Parkway, Suite 600

Addison, Texas 75001

Attention: Jon L. Dooley and Andrew J. Bruce


 

















 


Facsimile:
214-655-1610


 


with copy to:


 


Jones Day

27227 North Harwood Street


Dallas, Texas
75201-1515

Attention:  Michelle R. Brown, Esq.
and Mark K. Minton, Esq.

Facsimile: 214-969-5100


 


and


 


Powell Coleman &
Arnold LLP

8080 North Central Expressway

Suite 1380

Dallas, Texas 75206

Attention:  Patrick M. Arnold

Facsimile: 214-373-8768


 


All notices to be sent by New Indemnitor to Lender under the Guaranty
and Loan Documents shall be sent to Lender in the manner set forth in and at
the address shown in Section 3.7 of the Agreement to which this New
Indemnitor Joinder is attached.


 


7.                                       AUTHORIZED AGENT. FOR PURPOSES OF SECTION 5.3
OF THE GUARANTY, NEW INDEMNITOR DOES HEREBY DESIGNATE AND APPOINT:


 


c/o CT CORPORATION SYSTEM

111 EIGHTH AVENUE

NEW YORK, NEW YORK 10011


 


AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL
PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO NEW INDEMNITOR IN THE MANNER PROVIDED HEREINABOVE SHALL
BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON NEW INDEMNITOR, IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK.


 


The undersigned New Indemnitor has executed
and delivered this New Indemnitor Joinder to be effective as of the date of the
Agreement.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


 


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  WITNESSES:

  	
  NEW INDEMNITOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD REIT I, INC., a Maryland corporation

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  STATE OF)

  	
   

  	
   

  
	
   

  	
  ) SS.:

  	
   

  
	
  COUNTY OF)

  	
   

  	
   

  
							



 


The foregoing instrument was acknowledged
before me this             
day of                   ,
2007, by                              ,
as                            
of BEHRINGER HARVARD REIT I, INC., a Maryland corporation, on
behalf of said corporation. He/She is       
personally known to me or          
produced                                             
as identification and did not take an oath.


 


	
   

  	
   

  
	
   

  	
  Notary Public

  
	
   

  	
  Print Name:

  	
   

  
	
   

  	
   

  
	
  My Commission Expires:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  [Notarial Seal]

  	
   

  
						



 


 


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