Exhibit 10.7


 


THIRD AMENDMENT TO CREDIT AGREEMENT


 


THIS THIRD AMENDMENT TO
CREDIT AGREEMENT (this “Third Amendment”), dated effective as of October 30,
2008, is entered into by and among BANK OF AMERICA, N.A., a national banking
association, as Administrative Agent for itself and on behalf of the Lenders
(herein so called) now or hereafter made a party to the Credit Agreement
referenced below (in such capacity, “Administrative Agent”), BEHRINGER
HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas limited partnership (“Borrower”),
and BEHRINGER HARVARD 250/290 CARPENTER LP, a Texas limited partnership (“Subsidiary
Guarantor”), who agree as follows:


 


BACKGROUND


 


A.    Borrower, Subsidiary Guarantor, and
Administrative Agent have executed that certain Credit Agreement dated as of September 1,
2005, as amended by the First Amendment to Credit Agreement (the “First
Amendment”) dated as of June 30, 2006 
and further amended by the Second Amendment to Credit Agreement (the “Second
Amendment”) dated as of August 30, 2008 (as so amended, the “Credit
Agreement”).  Pursuant to the terms
of the Credit Agreement, Borrower has executed and delivered to Bank of
America, N.A., as a Lender, a certain Promissory Note dated September 1,
2005, in the original principal amount of $11,250,000.00, made payable to the
order of Bank of America, N.A. (as amended by the First Amendment and the
Second Amendment, the “Note”).


 


B.    Subsidiary Guarantor also executed and
delivered to Administrative Agent that certain Guaranty Agreement dated as of September 1,
2005 (as amended by the First Amendment and Second Amendment, the “Guaranty”).  The obligations of Subsidiary Guarantor
arising under the Guaranty are secured by, among other things, that certain
Deed of Trust, Assignment of Rents and Leases, Security Agreement, Fixture
Filing and Financing Statement dated September 1, 2005, executed by
Borrower for the benefit of Administrative Agent, on behalf of the Lenders,
recorded as Instrument No. 2005-174 01724 in the Real Property Records of
Dallas County, Texas (as amended, the “Deed of Trust”).


 


C.    The Credit Agreement, the Note, the
Guaranty, the Deed of Trust, and all other documents or instruments executed in
connection therewith are hereinafter referred to, collectively, as the “Loan
Documents”.  All capitalized terms
herein shall have the meanings set forth in the Credit Agreement, unless
otherwise defined herein.


 


D.    The maturity date of the Loan is October 30,
2008 and  Borrower and Subsidiary
Guarantor have requested that Administrative Agent and the Lenders agree to
extend the maturity date of the Loan for a period of ten (10) months.


 


NOW, THEREFORE, in
consideration of the covenants, conditions and agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which are all hereby acknowledged, Borrower, Administrative Agent and
Subsidiary Guarantor covenant and agree as follows:


 


1

















 


1.     EXTENSION OF
MATURITY DATE. 
Hereinafter, the term “Maturity Date” and all other references to the
maturity date of the Loan, in the Note and the other Loan Documents shall mean August 30,
2009.  The unpaid principal balance of
the Loan, together with all accrued but unpaid interest thereon, shall be due
and payable on the Maturity Date, as extended hereby. Borrower hereby renews,
but does not extinguish, the Note and the liens, security interests and
assignments created and evidenced by the Deed of Trust and the other Loan
Documents, and all of the Loan Documents are hereby renewed and modified by
extending the maturity date thereof as set forth above.  The extension evidenced by this Agreement
shall constitute the exercise of Borrower’s extension option pursuant to Section 1.5
of the Credit Agreement, notwithstanding that the terms of such extension
option have not been satisfied.  Borrower
and Administrative Agent hereby acknowledge that, from and after the date of
this Agreement, Borrower shall have no further right or option to extend the
Maturity Date.


 


2.     FEES AND EXPENSES.  Simultaneously with the execution of this
Agreement, Borrower shall (i) pay to Administrative Agent all costs and
expenses incurred by Administrative Agent in respect of the preparation and
recordation of this Agreement; and (ii) pay to Administrative Agent, for
the ratable benefit of the Lenders, the sum of $70,312.50 (the “Extension
Fee”), representing the extension fee payable by Borrower to the Lenders in
connection with the extension of the Maturity Date of the Loan.  Borrower acknowledges and agrees that the
Extension Fee is a bona fide fee and is intended as reasonable compensation to
the Lenders for agreeing to extend the Maturity Date of the Loan.


 


3.     AMENDMENTS TO CREDIT
AGREEMENT.


 


3.1   Definitions. Except with respect to terms that are defined
in this Amendment or terms used in the Credit Agreement that are redefined in
this Amendment, capitalized terms used in this Amendment shall have the meaning
given such terms in the Credit Agreement. Commencing on the date of this
Amendment, (i) the terms “Cash,” “Cash Equivalents,” and “Tangible Net
Worth” are hereby deleted from the Credit Agreement, and (ii) the
following capitalized terms shall have the meaning set forth below when used in
the Credit Agreement, and to the extent such capitalized terms are also defined
in the Credit Agreement, such definitions are amended by this Amendment:


 


“Assets” means, with respect to any Person
and without duplication, (1) all real property, together with all
buildings and improvements located on such real property, owned in whole or in
part by such Person, (2) all fixtures, personal property and equipment
owned by such Person, and (3) all Liquid Assets of such Person; provided,
however, that (i) the value of real property wholly owned by such
Person shall be determined based upon the fair value of such real property, as
set forth in a Current Appraisal of such real property, (ii) the value of
real property owned, in part, by such Person shall be determined based upon the
fair value of such real property, as set forth in a Current Appraisal of such
real property, multiplied by such Person’s
partial ownership interest (expressed as a percentage of the total ownership
interests in such real property), and (iii) the value of Equity
Investments in another Person shall be the fair value of such Equity Investment
(based upon a Current Appraisal of such Equity Investment or, 


 


2

















 


alternatively,
if no Current Appraisal of such Equity Investment is available, then based upon
the fair value, without duplication and as set forth in a Current Appraisal, of
all real property owned indirectly through such Equity Investment, multiplied by such Person’s percentage ownership interest
(expressed as a percentage of the Equity Interests owned in such other Person
to the total Equity Interests issued by such other Person). Borrower covenants
and agrees with Administrative Agent that, for purposes of determining the
value of the real property Assets of Borrower, Borrower shall obtain and deliver
to Administrative Agent Current Appraisals with respect to all real property
owned by Borrower, directly or indirectly and in whole or in part, once every
twelve (12) months; provided, however, that if as of any Test
Date, Borrower has failed to deliver to Administrative Agent a Current
Appraisal for any such real property, then the value of such real property
shall be determined by Administrative Agent in its sole discretion based upon
Administrative Agent’s assessment of relevant information readily available to
Administrative Agent regarding such real property.


 


“Attributable Indebtedness” means, on any
date, (a) in respect of any capital lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease payments under
the relevant lease that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP if such lease were accounted for as a
capital lease.


 


“Base
Rate” means, on any day, a simple rate per annum equal to the LIBOR Daily
Rate.


 


“Base
Rate Principal” means LIBOR Daily Rate Principal.


 


“BBA
LIBOR Daily Rate” means a fluctuating rate of interest per annum equal to
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published
by Reuters (or other commercially available source providing quotations of BBA
LIBOR as selected by Administrative Agent from time to time) as determined for
each Business Day at approximately 11:00 a.m. London time, two (2) Business
Days prior to the date in question, for U.S. dollar deposits (for delivery on
the first day of such interest period) with a one month term, as adjusted from
time to time in Administrative Agent’s sole discretion for reserve
requirements, deposit insurance assessment rates and other regulatory
costs.  If such rate is not available at
such time for any reason, then the rate will be determined by such alternate
method as reasonably selected by Administrative Agent.


 


“Current Appraisal” means, as to any real
property or Equity Investment owned by a Person, an “as is” appraisal (or
update to a prior “as is” appraisal) of such real property or Equity
Investment, as applicable, prepared by CB Richard 


 


3

















 


Ellis,
Integra Realty Resources, Inc., Cushman & Wakefield Inc., or any
other nationally recognized appraisal firm acceptable to Administrative Agent,
in form and content reasonably satisfactory to Administrative Agent, and
bearing a date no more than twelve (12) months prior to the applicable Test
Date.


 


“Equity Interests” means, with respect to any
Person and without duplication, all of the shares of capital stock of (or other
ownership or profit interests in) such Person, all of the warrants, options or
other rights for the purchase or acquisition from such Person of shares of
capital stock of (or other ownership or profit interests in) such Person, all
of the securities convertible into or exchangeable for shares of capital stock
of (or other ownership or profit interests in) such Person or warrants, rights
or options for the purchase or acquisition from such Person of such shares (or
such other interests), and all of the other ownership or profit interests in
such Person (including partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options, rights
or other interests are outstanding on any date of determination.


 


“Equity Investment” means, as to any Person,
any direct or indirect acquisition or investment by such Person, whether by
means of (a) the purchase or other acquisition of capital stock or other
securities of another Person, and (b) a loan, advance or capital
contribution to, Guarantee or assumption of debt of, or purchase or other
acquisition of any other debt or equity participation or interest in, another
Person, including any partnership or joint venture interest in such other
Person and any arrangement pursuant to which the investor Guarantees any
Liabilities of such other Person.


 


“GAAP” means generally accepted
accounting principles in the United States set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently
applied.


 


“Guarantee” means, as to any Person and
without duplication, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any
Liabilities or other obligation payable or performable by another Person (the “primary
obligor”) in any manner, whether directly or indirectly, and including any
obligation of such Person, direct or indirect, (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Liabilities or
other obligation, (ii) to purchase or lease property, securities or
services for the purpose of assuring the obligee in respect of such Liabilities
or other obligation of the payment or performance of such Liabilities or other
obligation, (iii) to maintain working capital, equity capital or any other
financial statement condition or liquidity or level of income or cash flow of
the 


 


4

















 


primary
obligor so as to enable the primary obligor to pay such Liabilities or other
obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Liabilities or other obligation of the
payment or performance thereof or to protect such obligee against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of
such Person securing any Liabilities or other obligation of any other Person,
whether or not such Liabilities or other obligation is assumed by such Person
(or any right, contingent or otherwise, of any holder of such Liabilities to
obtain any such Lien).  The amount of any
Guarantee shall be deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the guaranteeing
Person in good faith.


 


“Liabilities” means, as to any Person at a
particular time, without duplication, all of the following, whether or not
included as indebtedness or liabilities in accordance with GAAP:


 


(a)   all
obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements, repurchase
agreements or other similar instruments;


 


(b)   all
direct or contingent obligations of such Person arising under letters of credit
(including standby and commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;


 


(c)   net
obligations of such Person under any Swap Transaction;


 


(d)   all
obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business
[and, in each case, not past due for more than 60 days]);


 


(e)   all
indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned (directly or indirectly or in whole or in part) or being purchased by
such Person (in the nature of indebtedness arising under conditional sales or
other title retention agreements and indebtedness secured by a Lien on such
property), whether or not such Person is personally liable for the repayment of
such indebtedness or such indebtedness shall have been assumed by such Person
or is limited in recourse;


 


(f)    capital
leases and Synthetic Lease Obligations;


 


5

















 


(g)   all
refundable advances, deposits or similar funds representing advance
payment  to such Person for good or
services not yet rendered;


 


(h)   all
obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of any Equity Interest in such Person or any other
Person, valued, in the case of a redeemable preferred interest, at the greater
of its voluntary or involuntary liquidation preference plus accrued and unpaid
dividends; and


 


(i)    all
Guarantees of such Person in respect of any of the foregoing.


 


For
all purposes hereof, (1) the Liabilities of any Person shall include the
Liabilities of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Liabilities are expressly
made non-recourse to such Person, (2) the amount of any net obligation
under any Swap Transaction on any date shall be deemed to be the Swap
Termination Value thereof as of such date, (3) the amount of any capital
lease or Synthetic Lease Obligation as of any date shall be deemed to be the
amount of Attributable Indebtedness in respect thereof as of such date, (4) the
term “Liabilities” shall exclude the Permitted Subordinated Debt, and (5) the
Liabilities for indebtedness of such Person pursuant to clause (e) above
shall, as to indebtedness secured by a Lien on real property owned, in part, by
such Person, be determined based upon the unpaid amount of such indebtedness multiplied by such Person’s partial ownership interest
(expressed as a percentage of the total ownership interests in such real
property).


 


“LIBOR
Daily Rate” means a simple rate per annum equal to the sum of the BBA LIBOR
Daily Rate plus 3.50%.


 


“LIBOR Rate Principal” means any portion of the Loan which bears interest at a rate
determined by reference to the LIBOR Daily Rate.


 


“Lien” means any mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), charge, or preference, priority or other security interest or
preferential arrangement in the nature of a security interest of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same economic effect
as any of the foregoing).


 


“Liquid Assets” means the sum of the
total assets of Borrower that are cash, cash equivalents, accounts and other
highly liquid investments that are not pledged, hypothecated, subject to rights
of offset (other than pursuant to 


 


6

















 


customary banker’s liens
with respect to deposit or similar accounts not maintained for the purpose of
providing security) or otherwise restricted.


 


“Net Worth” shall mean the excess of total
assets over total liabilities (contingent or otherwise, including without
limitation, declared and unpaid distributions to partners of Borrower)
determined in accordance with GAAP (without giving effect to FASB 133 or any
liability pursuant to a hedging arrangement which is entered into to reduce or
eliminate or otherwise protect against the risk of fluctuations in prices or
rates, including interest rates, foreign exchange rates, commodity prices and
securities prices).


 


“Permitted Subordinated Debt” means unsecured
indebtedness for borrowed money owing by Borrower to Behringer Harvard Holdings
LLC.  Borrower hereby covenants and
agrees with Administrative Agent and the Lenders that Borrower shall not incur
any indebtedness for borrowed money from any Affiliate unless such indebtedness
(i) is subordinate, by its terms, or caused to be made subordinate by
agreement approved by Administrative Agent, to the payment in full of the Loan,
and (ii) is not due and payable, in whole or in part, prior to the maturity
date of the Loan.


 


“Swap Termination Value” means, in respect of
any one or more Swap Transactions, after taking into account the effect of any
legally enforceable netting agreement relating to such Swap Transactions, (a) for
any date on or after the date such Swap Transactions have been closed out and
termination value(s) determined in accordance therewith, such termination
value(s), and (b) for any date prior to the date referenced in clause (a),
the amount(s) determined as the mark-to-market value(s) for such Swap
Transactions, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Swap
Transactions (subject to the reasonable approval of Administrative Agent).


 


“Swap Transaction”
means, with respect to any Person, any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap or
option, bond, note or bill option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swap option currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise clearly
requires, any form of master agreement published by the International Swaps and
Derivatives Association, Inc., or any other master agreement, entered into
by such Person, together with any related schedules, as amended, supplemented,
superseded or replaced from time to time, relating to or governing any or all
of the foregoing.


 


7

















 


“Synthetic Lease Obligation” means the monetary
obligation of a Person under (a) a so-called synthetic, off-balance sheet
or tax retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet of such
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as the indebtedness of such Person (without regard to accounting
treatment).


 


“Test Date” shall mean, the last date
of each calendar quarter (i.e., every December 31st, March 31st, June 30th
and September 30th) during the term of the Loan.


 


3.2   INTEREST RATE. Notwithstanding the provisions in the Credit Agreement
or other Loan Documents to the contrary, Borrower will no longer have the
option to request or require that the Loan accrue interest with respect to the
Base Rate or LIBOR Rate. All references in the Loan Agreement to the terms “Base
Rate” shall mean and refer to the “LIBOR Daily Rate” as defined herein.  If for any reason on the date for
determining the LIBOR Daily Rate, Administrative Agent shall determine that any
of the circumstances or events described in Sections 1.7.4 and 1.7.5
of the Credit Agreement exist, then Administrative Agent shall promptly give to
Borrower telephonic notice (confirmed as soon as practicable in writing) of
such events or circumstances.  After
receipt of such notice and during the existence of such events or
circumstances, the interest rate applicable to the outstanding principal
balance of the Loan shall be determined based upon an alternate index selected
by Administrative Agent, in its sole discretion, reasonably comparable to that
of the BBA LIBOR Daily Rate, intended to generate a return substantially the
same as the LIBOR Daily Rate (based upon the most recently reported or
ascertainable BBA LIBOR Daily Rate as determined by Administrative Agent).


 


3.3   NO FURTHER ADVANCES OR LETTERS OF CREDIT; NO REVOLVING FEATURE.  Notwithstanding the provisions of
the Credit Agreement, (i) no further Advances of the Loan will be made by
Lenders and no LCs will be issued by Issuing Bank after the date of this Third
Amendment, and (ii) amounts borrowed and repaid by Borrower may not be
reborrowed by Borrower.


 


3.4   LC FEE. 
Section 1.10(j) of the Credit Agreement is hereby amended and
restated in its entirety as follows:


 


(j)    LC Fee.   Borrower
shall pay to the Administrative Agent for the account of each Lender in
accordance with its Pro Rata Share a LC fee for such LC equal to the greater of
(i) 3.50% per annum times the daily maximum amount available to be drawn
under the LC, or (ii) $500.  Such
fee shall be due and payable, quarterly, in advance, commencing on the date the
LC is issued by Issuing Bank and on the same day of each third calendar month
thereafter until the LC expiration date.


 


8
















 


3.5           QUARTERLY PRINCIPAL PAYMENTS.  Section 1.12 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


1.12         Payment Schedule and Maturity Date.  The entire principal balance of the Loan then
unpaid and all accrued interest then unpaid shall be due and payable in full on
the Maturity Date.  Accrued unpaid
interest shall be due and payable on the first (1st) day of the first (1st)
calendar month after the Closing Date and on the same day of each succeeding
calendar month thereafter until all principal and accrued interest owing on the
Loan shall have been fully paid and satisfied. 
Borrower agrees that on November 17, 2008, and on each of February 1,
2009, May 1, 2009 and August 1, 2009 thereafter, Borrower will pay to
Administrative Agent, for the ratable benefit of the Lenders, a principal
payment in the amount of $400,000.


 


3.6           FINANCIAL COVENANTS.  Section 2.16 of the Credit Agreement is
hereby amended and restated in its entirety as follows:


 


2.16         Financial
Covenants.  Borrower
hereby covenants and agrees with Administrative Agent and the other Lenders as
follows:


 


(a)           Minimum
Net Worth.   As of each Test Date
during the term of the Loan, Borrower shall have a Net Worth of not less than
$30,000,000; and


 


(b)           Minimum
Liquidity.  As of each Test Date
during the term of the Loan, Borrower shall have Liquid Assets at least equal
to $3,000,000; and


 


(c)           Liabilities/Assets.  As of each Test Date during the term of the
Loan, the ratio (expressed as a percentage) of all Liabilities of Borrower to
all Assets of Borrower shall not be greater than seventy-five percent (75%).


 


4.             WAIVER AND
AGREEMENT.  To the
extent that Borrower failed to satisfy the financial covenants in Section 2.16
of the Credit Agreement for the calendar quarters ending on September 30,
2008 and December 31, 2008, Administrative Agent, on behalf of the
Lenders, hereby waives compliance by Guarantor of such financial covenants for
such calendar quarters.  For purposes of
determining the value of Borrower’s Assets, Borrower will obtain, within 90
days after the date of this Agreement, Current Appraisals (as defined above)
for all real property which is owned, in whole or in part, by Borrower .


 


5.             REPRESENTATIONS. Borrower and
Subsidiary Guarantor each hereby severally represents and warrants to
Administrative Agent and the Lenders that (a) to the best of  such party’s knowledge, the execution and
delivery of this Third Amendment does not contravene, result in a breach of or
constitute a default under any deed of trust, loan agreement, indenture or
other contract or agreement to which it is a party or by which it or any of the



 


9

















 


properties
of it may be bound; (b) this Third Amendment constitutes the legal, valid
and binding obligation of such party enforceable in accordance with its terms,
subject to the limitations of equitable principles and bankruptcy, insolvency,
debtor relief or other similar laws affecting generally the enforcement of
creditors’ rights; (c) the execution and delivery of, and performance
under this Third Amendment are within such party’s power and authority without
the joinder or consent of any other party and have been duly authorized by all
requisite action and are not in contravention of law or the provisions of any
organizational documents governing such party or of any indenture, agreement or
undertaking to which Borrower or Subsidiary Guarantor, as applicable, is a
party or by which it is bound; and (d) to the knowledge of such party,
there exists no uncured default under any Loan Document.


 


6.             RATIFICATION.  The parties to this Third Amendment agree
that the terms and provisions of this Third Amendment shall modify and
supersede all inconsistent terms and provisions of the Credit Agreement and, except
as expressly modified and superseded by this Third Amendment, the terms and
provisions of the Credit Agreement are ratified and confirmed and shall
continue in full force and effect.  The
liens, security interests, collateral assignments and financing statements in
respect of the Loan are hereby ratified and confirmed as valid, subsisting and
continuing to secure the Loan Documents. 
Nothing herein shall in any manner diminish, impair or extinguish the
Note or any of the Obligations. Borrower and Subsidiary Guarantor hereby ratify
and acknowledge that the Loan Documents are valid, subsisting and enforceable
and agree and warrant that there are no offsets, claims or defenses with
respect to any of the Obligations.


 


7.             CONSENT
AND RATIFICATION. Subsidiary Guarantor hereby unconditionally and
irrevocably acknowledges and agrees that the Guaranty and Subsidiary Guarantor’s
obligations, covenants, agreements and duties thereunder remain in full force
and effect, notwithstanding the modification of the Credit Agreement effected
hereby.  Subsidiary Guarantor hereby
unconditionally and irrevocably ratifies, reaffirms and confirms the Guaranty
and its obligations thereunder.


 


8.             RELEASE
OF USURY CLAIMS. Borrower and Subsidiary Guarantor each hereby releases
Administrative Agent and the Lenders and their successors and assigns, from all
claims, demands, liabilities, rights of offsets, defenses and causes of action
which Borrower and/or Subsidiary Guarantor may be entitled to assert (although
no such claims are known to exist) against Administrative Agent and the Lenders
in respect of the Note, the Credit Agreement and the other Loan Documents for
any reason whatsoever, including without limitation, by reason of Lenders’
contracting, charging or receiving for the use, forbearance or detention of
money, interest on the loan evidenced by the Note prior to the execution of
this Third Amendment in excess of that permitted to be charged to Borrower or
Subsidiary Guarantor under applicable law.


 


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


 


10

















 


10.           BINDING
EFFECT.  The terms and provisions
hereof shall be binding upon and inure to the benefit of the parties hereto,
their representatives, successors and assigns.


 


11.           APPLICABLE
LAW.  This Third Amendment shall be
construed in accordance with the laws of the State of Texas and the laws of the
United States applicable to transactions in the State of Texas.


 


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


 


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11

















 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD SHORT-TERM

  
	
   

  	
  OPPORTUNITY
  FUND I LP, a Texas limited 

  
	
   

  	
  partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard Advisors II LP, a Texas

  
	
   

  	
   

  	
  limited
  partnership, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Harvard
  Property Trust, LLC, a 

  Delaware limited liability company, 

  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Vice President

  
						



 


	
  STATE
  OF TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
   

  	
  §

  



 


The
foregoing instrument was acknowledged before me this
         day of November, 2008, by
Gerald J. Reihsen, III, Executive Vice President of Harvard Property
Trust, LLC, a Delaware limited liability company, general partner of Behringer
Harvard Advisors II LP, a Texas limited partnership, general partner of
Behringer Harvard Short-Term Opportunity Fund I, LP, a Texas limited
partnership, on behalf of said partnerships and company.


 


WITNESS
my hand and official seal.


 


	
  (SEAL)

  	
   

  
	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  
	
   

  	
  Notary’s
  Printed Name:

  
	
   

  	
   

  
	
   

  	
  Notary’s
  Commission Expires:

  
	
   

  	
   

  



 

















 


	
   

  	
  ADMINISTRATIVE
  AGENT:

  
	
   

  	
   

  
	
   

  	
  BANK
  OF AMERICA, N.A., a national banking 

  association, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:
  

  	
  Jamison
  L. Fox

  
	
   

  	
  Title:

  	
  Vice
  President

  
				



 


	
  STATE
  OF TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
   

  	
  §

  



 


The foregoing instrument was
severally acknowledged before me this
           day of November,
2008, by Jamison L. Fox, Vice President of Bank of America, N.A., a national
banking association, on behalf of said association.


 


WITNESS
my hand and official seal.


 


	
  (SEAL)

  	
   

  
	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Notary’s
  Printed Name

  
	
   

  	
   

  
	
   

  	
  Notary’s
  Commission Expires:

  
	
   

  	
   

  



 

















 


	
   

  	
  SUBSIDIARY  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD 250/290 CARPENTER LP, a 

  Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard 250/290 Carpenter GP, LLC, a 

  Texas
  limited liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
  Title:

  	
  Secretary

  
					



 


 


	
  STATE
  OF TEXAS

  	
   

  	
  §

  
	
   

  	
   

  	
  §

  
	
  COUNTY
  OF DALLAS

  	
   

  	
  §

  



 


The foregoing instrument was
acknowledged before me this
             day of
November, 2008, Gerald J. Reihsen, III, Secretary of Behringer Harvard
250/290 Carpenter GP, LLC, a Texas limited liability company, general partner
of Behringer Harvard 250/290 Carpenter LP, a Texas limited partnership, on
behalf such partnership and company.


 


Witness my hand and official
seal.


 


	
   

  	
   

  
	
   

  	
  Notary Public, State of Texas

  
	
   

  	
   

  
	
   

  	
  My
  commission expires: