Exhibit 10.4


FORM OF BEHRINGER HARVARD HOLDINGS

SERVICE MARK LICENSE AGREEMENT


THIS SERVICE MARK LICENSE AGREEMENT (this “Agreement”)
is made and entered into this        day of
                   ,
2007 (the “Effective Date”), by and between
BEHRINGER HARVARD HOLDINGS, LLC, a Delaware limited liability company (the “Licensor”), and BEHRINGER HARVARD OPPORTUNITY REIT II, INC.,
a Maryland corporation (the “Licensee”).


RECITALS


WHEREAS, Licensor is the owner
of valid and subsisting rights in and to the service marks “BEHRINGER HARVARD”
(U.S. Registration No. 2,947,624) ); and the “BEHRINGER HARVARD MISCELLANEOUS
CIRCULAR DESIGN LOGO” (U.S. Registration No. 3,200,214) (referred to herein
collectively as the “Licensed Mark”)
and similar marks in a variety of design and words-only formats, both in the
United States and in various foreign jursidictions; and


WHEREAS, of even date herewith, Behringer
Harvard Opportunity Advisors II LP, a Texas limited partnership and an
affiliate of Licensor (the “Advisor”), and
Licensee have entered into an Advisory Management Agreement, pursuant to the
terms of which Advisor will provide certain management and financial advisory
services to Licensee in accordance with the terms and conditions thereof (the “Advisory Agreement”); and


WHEREAS, Licensor is a “sponsor” of Licensee, as
that term is defined in the charter of Licensee;


WHEREAS, for so long as Licensor desires to
sponsor Licensee, Licensor desires to permit Licensee to utilize the Licensed
Mark solely in connection with the operation and promotion of Licensee’s real
estate business as intended to be conducted as of the Effective Date (the “REIT Operations”).


NOW,
THEREFORE, in
consideration of the mutual covenants and promises contained in this Agreement,
the Advisory Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and accepted by the parties to
this Agreement, Licensor and Licensee mutually agree as follows:


AGREEMENTS


1.     Grant of License; Territory.




a.             Upon
the terms and conditions hereinafter set forth, Licensor hereby grants to
Licensee, for the period specified in Section 5 hereof, a non-exclusive,
royalty-free, limited and nontransferable license to use the Licensed Mark
solely for the purpose of identifying and promoting the REIT Operations
worldwide.  In addition, each person or
entity directly or indirectly controlled by Licensee on or after the Effective
Date, either through the ownership of voting securities or otherwise (each such
person or entity a “Licensee Subsidiary”),
shall have all of the rights granted to Licensee in this Section 1(a), but only
during such period that such person or entity is directly or indirectly
controlled by Licensee, either through the ownership of voting securities or
otherwise.  Any reference in  this Agreement to use of the Licensed Mark by
Licensee shall be deemed to include use of the Licensed Mark by any Licensee
Subsidiary during such period that such Licensee Subsidiary is directly or
indirectly controlled by Licensee, either through the ownership of voting
securities or otherwise.




 

















b.             Licensor expressly reserves all rights with respect to
the Licensed Mark not expressly granted herein. 
Except as provided in Section 1(a) with respect to a Licensee
Subsidiary, Licensee shall have no right to sublicense the use of the Licensed
Mark to any other person or entity without the prior written consent of
Licensor, which may be withheld or granted in Licensor’s sole and absolute
discretion.


2.     Acknowledgement of Ownership.




a.             Licensee
acknowledges the great value of the goodwill associated with the Licensed Mark
and the ownership of the Licensed Mark by Licensor.  Licensee agrees that nothing in this
Agreement shall give Licensee any right, title, or interest in or to the
Licensed Mark other than the rights granted the Licensee in accordance with
this Agreement.  Licensee further
acknowledges that all goodwill arising from the ownership and use of the
Licensed Mark (as distinguished from any enhancement of value to Licensee’s
business arising from the license granted hereunder) shall inure exclusively to
the benefit of Licensor.  All artwork,
designs, stylized logotypes or other presentation materials whatsoever
including the Licensed Mark or any elements thereof, and all copies and
extracts thereof shall, notwithstanding their invention or use by Licensee, be
and remain the sole property of Licensor. 
Nothing in this Agreement shall be
construed to prevent Licensor from granting any other licenses for the use of
the Licensed Mark or from utilizing the Licensed Mark, or any variation
thereof, in any manner whatsoever.




b.             Licensee agrees that it shall not attack the title of
Licensor to the Licensed Mark, the validity of the Licensed Mark, or the
validity of this Agreement.  Licensee
further agrees that it shall not at any time commence any opposition or
cancellation proceeding regarding the Licensed Mark, or any other mark of
Licensor, with the U.S. Patent and Trademark Office or any other agency that
registers trademarks, commence any civil proceeding for damages or injunctive
relief or make any other legal claim that would, directly or indirectly, hinder
the value of or the Licensor’s ownership or use of the Licensed Mark or prevent
the U.S. Patent and Trademark Office or any other agency that registers
trademarks from issuing a trademark registration to Licensor for the Licensed
Mark, or any variations thereof, or from renewing any trademark registration
for the Licensed Mark, or any variations thereof.


c.             Licensee shall not register or attempt to register the
Licensed Mark alone or as part of its own trademark, service mark, Internet
domain name, copyright, assumed name or trade name (except as may be otherwise
required by applicable law in connection with Licensee’s REIT Operations during
the term of this Agreement), nor shall Licensee use in such manner or attempt
to register any name or designation confusingly similar to the Licensed Mark as
determined in Licensor’s sole and absolute discretion.


d.             Licensee may not use the Licensed Mark in any manner to
disparage Licensor, its products or services, or in any manner which, in
Licensor’s reasonable judgment, may diminish or otherwise damage Licensor’s goodwill
in the Licensed Mark or Licensor’s business reputation.


e.             The provisions of this Section 2 shall survive the
expiration or termination of this Agreement for any reason.


3.     Quality Control.


a.             Licensee shall use the Licensed Mark solely as permitted
in Section 1(a) above in a manner that will reasonably protect Licensor’s
rights and goodwill therein, and will comply with all reasonable and customary
trademark usage guidelines delivered to Licensee by Licensor from time to time,
including those regarding the use of notices, legends, or markings that may be
required by Licensor in order to give customary notice of ownership, including
those provided in Section 4 hereof.




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b.             Licensee shall, upon Licensor’s reasonable request: (i)
permit Licensor to inspect the manner in which the Licensee exercises the
rights granted hereunder to use the Licensed Mark, and (ii) make available for
Licensor’s inspection, at reasonable times and after reasonable notice from
Licensor, all of Licensee’s materials relating to or displaying the Licensed
Mark or any elements thereof.


c.             Licensee agrees that the products and/or services
offered in connection with the Licensed Mark shall be sold and/or distributed
in accordance with all Federal, State and local laws.


d.             If at any time the Licensee’s promotional materials,
documents or signage bearing the Licensed Mark do not meet the quality
standards described in this Section 3, Licensor shall have the right to require
the Licensee to discontinue any and all such nonconforming uses of the Licensed
Mark immediately upon notice whereupon Licensee agrees to use its best efforts
to cease all such nonconforming uses immediately.


4.             Protection of Licensed Mark.


a.             Each time the Licensed Mark is used on any product,
document, signage, exterior display or other printed or tangible material or on
the Internet, Licensee shall legibly include either the trademark or service
mark notice “TM” or “SM”, as appropriate, or the Federal registration notice ®,
if directed to do so by Licensor, adjacent to the first prominent use of the
Licensed Mark therein or thereon.


b.             When directed by Licensor to do so, Licensee shall
include the following notice on any packaging, product, advertising, or
promotional materials incorporating the Licensed Mark presented in any medium
now known or hereafter created:


“BEHRINGER
HARVARD” is a
service mark of Behringer Harvard Holdings, LLC.


c.             Licensee agrees to provide Licensor with such assistance
as Licensor may reasonably require, at Licensor’s expense, in the procurement
of any protection of Licensor’s rights to the Licensed Mark, or any similar
mark.


d.             Licensee agrees that at all times during the term of
this Agreement it will diligently and continuously cause to be promoted and
rendered the REIT Operations as set forth in Section 1 hereof.  Licensor shall not be under any obligation
whatsoever to utilize the Licensed Mark or any variation thereof.


5.             Term.


This Agreement
shall continue in force and effect from the Effective Date and shall be
coterminous with the Licensor’s sponsorship of Licensee, unless terminated
earlier as provided for herein.  For
purposes of the preceding sentence, Licensor’s sponsorship shall be deemed to
continue until such time that no Affiliate (as that term is defined in the
Advisory Agreement) of Licensor serves as an officer or director of Licensee.


6.             Termination.


a.             If Licensee breaches or otherwise fails to perform any
of its obligations hereunder, Licensor shall have the right to terminate
this Agreement upon thirty (30) days’ prior written notice to Licensee, but
only in the event such failure of performance is not cured to Licensor’s
satisfaction within such thirty (30) day period.  Such
termination of this Agreement shall be without prejudice to any rights 


 


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or remedies that
Licensor may otherwise have against Licensee, which rights and remedies shall
survive any such termination.


b.             If at any time during the term of this Agreement Licensee
ceases to conduct the REIT Operations under the Licensed Mark, Licensor in
addition to all other remedies available to it hereunder, may immediately
terminate this Agreement by giving written notice of termination to Licensee.


c.             If Licensee files a petition in bankruptcy or is
adjudicated bankrupt or if a petition in bankruptcy is filed against Licensee
or if it becomes insolvent, or makes an assignment for the benefit of its
creditors or an arrangement pursuant to any bankruptcy law, or if Licensee liquidates
or discontinues its business or if a receiver is appointed for it or its
business, the license hereby granted and this Agreement shall automatically
terminate forthwith without any notice whatsoever being necessary.  In the event this Agreement is so terminated,
Licensee, its receivers, representatives, trustees, agents, administrators,
successors and/or assigns shall have no right to sublicense, sell, exploit or
in any way deal with or in or use the Licensed Mark or any variation thereof,
except with and under the special consent and instructions of Licensor in
writing, which they shall be obligated to follow.




d.             Upon
termination of this Agreement for any reason, Licensee agrees:  (i) to, within a reasonable time but not
to exceed ninety (90) days, discontinue all use of the Licensed Mark and any
name confusingly similar thereto; (ii) to, within a reasonable time but
not to exceed ninety (90) days, delete, remove or cover-over all references to
the Licensed Mark, or any confusingly similar variation thereof, in all of
Licensee’s printed materials, signage or other exterior displays, and on the
Internet; (iii) to not thereafter, directly or indirectly, identify itself
in any manner as a licensee of Licensor or publicly identify itself as a former
licensee of Licensor; (iv) to cooperate generally with Licensor to ensure
that all rights in the Licensed Mark and the related goodwill remain the
property of Licensor and to execute any instruments requested by Licensor to accomplish
or confirm the foregoing;  (v) that all rights granted to Licensee hereunder shall
forthwith revert to Licensor without consideration other than the mutual
covenants and considerations of this Agreement, and without notice; (vi) to
cease to conduct any business, including, without limitation, the REIT
Operations, under or to otherwise use the names “HARVARD” or “BEHRINGER” or any
confusingly similar terms and to use its best efforts to change the corporate
name of Licensee to a name that does not contain the terms “HARVARD” or “BEHRINGER”
or any confusingly similar terms which may, directly or indirectly in the sole
discretion of Licensor, indicate a continuing relationship between, or
sponsorship of, Licensee by Licensor or any of Licensor’s Affiliates; and (vii)
to deliver to Licensor within fifteen days from the date of termination any and
all artwork, designs, stylized logotypes or other electronic or
intangible presentation materials whatsoever including the Licensed Mark or any
elements thereof prepared by or for Licensee, and all copies and extracts
thereof.






e.             Licensee
acknowledges that its failure to cease the use and display of the Licensed
Mark, or any variation thereof, upon the termination or expiration of this
Agreement will result in immediate and irremediable damage to Licensor and to
the rights of any current or subsequent licensee.  Licensee acknowledges and admits that there
is no adequate remedy at law for such failure to cease such use, and Licensee
agrees that in the event of such failure Licensor shall be entitled to
equitable relief by way of temporary and permanent injunction and temporary
restraining order and such other further relief as any court with jurisdiction
may deem just and proper.  Resort to any
remedies referred to herein shall not be construed as a waiver of any other
rights and remedies to which Licensor is entitled under this Agreement or
otherwise.




7.             Third-Party
Infringement Proceedings.


Licensee agrees to
promptly notify Licensor of any unauthorized use of the Licensed Mark or any
confusingly similar variation thereof by third parties of which Licensee
becomes aware.  Licensor shall have the
sole right to pursue through negotiations, litigation, or other dispute
resolution procedure 


 


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(“Litigation
Rights”) any and all of its rights in the Licensed Mark against any third
party.  Licensor’s exercise of such
Litigation Rights shall be in its sole discretion and shall be at its sole
cost.  Licensor shall have no duty to defend
Licensee or itself or pursue any actual infringement arising out of any actions
by a third party.  All recoveries
received by Licensor in pursuing its Litigation Rights, if any, shall be the
sole property of Licensor.


8.             Representations
and Warranties.


a.             Licensor represents
and warrants that this Agreement will not violate any prior licenses or rights
to use the Licensed Mark granted by Licensor to any third party.


b.             Each party hereto hereby represents and
warrants to the other that such party has the corporate, company or partnership
power and authority to execute and deliver this Agreement and to perform its
obligations hereunder, and that the execution, delivery and performance of this
Agreement by it have been duly authorized by all necessary corporate, company
or partnership action.


9.             Indemnification.




                Licensee hereby agrees to
indemnify and hold Licensor harmless from and against any and all claims,
suits, liabilities, judgments, and expenses, arising at law or in equity,
attributable, in whole or in part, to: (i) the Licensee's use of the Licensed
Mark in violation of this Agreement or of any trademark usage guidelines
provided to Licensee by Licensor; or (ii) the marketing, promotion,
advertisement, distribution, or sale by Licensee of any product or service
under the Licensed Mark.  Moreover,
Licensee hereby further agrees to tender to Licensor the defense of any and all
such claims, actions and lawsuits that may be brought against Licensor arising
out of, or related to, the wrongful use of the Licensed Marks by the Licensee
and the Licensee shall pay all fees and expenses (including all reasonable
attorneys' and expert witnesses' fees and costs of suit) incurred in connection
with defending all of these claims, actions and lawsuits; provided that
Licensee shall have no obligation to pay any fees or expenses for claims,
actions and lawsuits brought by a third party against the Licensor claming that
the Licensed Mark violates or infringes upon the rights of the third party.  Licensor shall control such defense with
counsel of its choice, however, Licensee shall have the right to participate in
such defense at its own cost and expense and Licensee shall provide reasonable
cooperation to Licensor and its counsel with respect thereto; provided that in
no event may Licensor settle any claim, action or lawsuit in which the Licensee
is a named defendant without the consent of the Licensee.  Licensor shall also have the independent
right to take any action it may deem necessary, in its sole discretion, to
protect and defend itself against any threatened action arising out of the
business of Licensee or any actions or activity by Licensee, including
Licensee's use of the Licensed Mark or any goods or services distributed or
sold under the Licensed Mark. 
Notwithstanding the foregoing, Licensee’s exculpation and
indemnification obligations hereunder as well as Licensee’s obligations with
respect to the advancement of expenses, shall be limited as provided in its
charter.






10.          Limitation of Liability




Licensor shall not
be liable to Licensee for lost profits, lost business opportunities, or any
other indirect, special, punitive, incidental or consequential damages arising
out of or related to this Agreement, even if Licensor has been advised of the
possibility of such damages.  The
provisions of this Section 10 shall survive the termination of this Agreement for
any reason.


11.          Miscellaneous


a.             Assignment. 
Licensee shall neither assign any of its rights under this Agreement nor
delegate any of its duties hereunder to another person or legal entity without
the prior written consent of Licensor, which may be withheld in Licensor’s sole
discretion.  Any attempt to assign or
delegate this Agreement, or any of the rights, licenses or duties set forth
herein, shall be void ab initio and convey no rights or interests in the
Licensed Mark.  Licensor shall have the
right, in its sole discretion, to assign any of its rights or duties under this
Agreement and all of its right, title, and interest in the Licensed Mark to 


 


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another person or
legal entity.  Notwithstanding anything
to the contrary herein, this Section 11(a) shall not limit the rights granted
in Section 1(a) with respect to a Licensee Subsidiary.


b.             Notices.  All notices or other communications required
or permitted to be given by either party hereto to the other party under this
Agreement shall be in writing and shall be sent by United States Mail,
certified or registered, postage prepaid, return receipt requested or by
an internationally recognized overnight carrier, in each case addressed to the
party to be notified as follows:


(i) to Licensee at the address set forth
in the Advisory Agreement, as the same may be modified as provided therein; and


	
  (ii) to Licensor:

  	
   

  	
  Behringer Harvard
  Holdings, LLC

  
	
   

  	
   

  	
  15601 Dallas Parkway

  
	
   

  	
   

  	
  Suite 600

  
	
   

  	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  	
  Attention: Gerald J.
  Reihsen III

  
	
   

  	
   

  	
  Executive Vice President Corporate

  
	
   

  	
   

  	
  Development and Legal

  
	
   

  	
   

  	
   

  
	
  With a copy to (which shall not
  constitute notice):

  
	
   

  
	
   

  	
   

  	
  Stephen L. Sapp,
  Esq.

  
	
   

  	
   

  	
  Locke Lord Bissell
  & Liddell LLP

  
	
   

  	
   

  	
  2200 Ross Avenue,
  Suite 2200

  
	
   

  	
   

  	
  Dallas, Texas 75201

  



 




Notice
delivered by mail shall be deemed given on the third Business Day after being
deposited in a post office or other depository under the care or custody of the
United States Postal Service, enclosed in a wrapper with proper postage affixed.  Notice given by overnight courier shall be
deemed given upon receipt by the recipient of notice.  Licensor may change the address for notice
specified herein by providing written notice to Licensee as set forth herein.




c.             Independent Contractors.  The parties acknowledge and agree that they
are dealing with each other hereunder as independent contractors.  Nothing contained in this Agreement shall be
interpreted as constituting either party the joint venturer or partner of the
other party or as conferring upon either party the power or authority to bind
the other party in any transaction with third parties.


d.             Attorneys’ Fees. 
In the event of any action, suit, or proceeding brought by either party
to enforce the terms of this Agreement, the prevailing party shall be entitled
to receive its costs, expert witness fees, and reasonable attorneys’ fees and
expenses, including costs and fees on appeal.


e.             Waivers, Cumulative Remedies and Amendments.  This Agreement may be amended, modified,
superseded, or canceled, and the terms and conditions hereof may be waived only
by a written instrument signed by each of the parties hereto or, in the case of
a waiver, by the party waiving compliance. 
No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right hereunder, nor any single or partial
exercise of any rights hereunder, preclude any other or further exercise
thereof or the exercise of any other right hereunder.  Unless expressly set forth herein to the
contrary, either party’s election of any remedies provided for in this
Agreement shall not be exclusive of any other remedies available hereunder or
otherwise and all such remedies shall be deemed to be cumulative.


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f.              Approval. 
Any approval given by Licensor to Licensee under the terms of this
Agreement shall not constitute a waiver of any of Licensor’s rights or Licensee’s
duties under any provision of this Agreement, other than with respect to the
provision for which such specific approval was provided, subject to the other
provisions hereof.


g.             Survival. 
Upon the termination of this Agreement for any reason, those Sections
that by their express terms or which by their nature should be deemed to
survive the termination of this Agreement shall survive the termination of this
Agreement.


h.             Governing Law and Validity.  The parties agree that the laws of the State
of Texas shall govern the interpretation and enforcement of this Agreement,
without giving effect to choice of law rules. 
If any provision of this Agreement is held to be void, invalid or
inoperative, such event shall not affect any other provisions herein, which
shall continue and remain in full force and effect as though such void, invalid
or inoperative provision had not been a part hereof.


i.              Entire Agreement.  This Agreement constitutes the entire
agreement between the parties hereto with respect to the Licensed Mark and
related subject matter and supersedes all prior agreements and understandings,
oral and written, between the parties hereto with respect to such matters.


[Signature Page Follows]


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




	
  LICENSOR:

  
	
   

  	
   

  
	
  BEHRINGER HARVARD HOLDINGS, LLC

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
  LICENSEE:

  
	
   

  
	
  BEHRINGER HARVARD OPPORTUNITY REIT II, INC.

  
	
   

  	
   

  
	
  By:

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
			







 




 


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