Exhibit 10.1


 


REIMBURSEMENT AGREEMENT


 


This
Reimbursement Agreement (this “Agreement”), dated as of October 21,
2010, is made by and between Behringer Harvard REIT I, Inc., a Maryland
corporation (the “Company”), Behringer Harvard Holdings, LLC, a Delaware
limited liability company (“BHH”), and Robert M. Behringer, an
individual (“RMB”).


 


R E C I T A L S


 


A.                                   WHEREAS, the
Company, through its indirect, wholly-owned subsidiary, Behringer Harvard
Operating Partnership I LP, a Texas limited partnership (“Behringer OP”),
is the owner of all of the undivided tenant-in-common interests (the “Interests”)
in three office buildings located in Washington, D.C. (the “Colorado
Building”), Baltimore, Maryland (“250 Pratt”) and Houston, Texas (“Travis
Tower”) as a result of the transactions described below;


 


B.                                     WHEREAS,
20.524835% of Interests in the Colorado Building were initially held by
Behringer Harvard Colorado Building S, LLC (“Colorado Building Seller”),
a Delaware limited liability company formed by BHH, which in turn is controlled
by RMB, and Colorado Building Seller offered and sold those Interests to third
parties not related to the Company, BHH or their subsidiaries (the “Colorado
Building TIC Holders”);


 


C.                                     WHEREAS,
79.475165% of the Interests in the Colorado Building are held by Behringer
Harvard Colorado Building H, LLC (“Colorado Building Holder”), a
Delaware limited liability company and wholly owned subsidiary of Behringer OP;


 


D.                                    WHEREAS, each
of the Colorado Building TIC Holders and Colorado Building Holder became a “Borrower”
(as defined in the Greenwich Loan Agreement) under a loan agreement by and
among the Colorado Building TIC Holders, Colorado Building Holder and Greenwich
Capital Financial Products, Inc., dated as of August 9, 2004 (the “Greenwich
Loan Agreement”);


 


E.                                      WHEREAS, in
connection with the Greenwich Loan Agreement, each of BHH and RMB agreed to
guaranty certain obligations of the Borrowers under certain conditions pursuant
to the Guaranty of Recourse Obligations made by BHH and RMB in favor of
Greenwich Capital Financial Products, dated as of August 9, 2004 (the “Colorado
Building Guaranty Agreement”), under the Greenwich Loan Agreement (the “Colorado
Building Guaranty”);


 


F.                                      WHEREAS,
49.32005% of Interests in 250 Pratt were initially held by Behringer Harvard
Pratt S, LLC (“Pratt Seller”), a Delaware limited liability company
formed by BHH, which in turn is controlled by RMB, and Pratt Seller offered and
sold those Interests to third parties not related to the Company, BHH or their
subsidiaries (the “Pratt TIC Holders”);


 


G.                                     WHEREAS,
50.67995% of the Interests in 250 Pratt are held by Behringer Harvard Pratt H,
LLC (“Pratt Holder”), a Delaware limited liability company and wholly
owned subsidiary of Behringer OP;


 


H.                                    WHEREAS, each
of the Pratt TIC Holders and Pratt Holder became a “Borrower” (as defined in
the Citigroup Loan Agreement) under a loan agreement by and among the Pratt 


 

















 


TIC
Holders, Pratt Holder and Citigroup Global Markets Realty Corp., dated as of December 17,
2004 (the “Citigroup Loan Agreement”);


 


I.                                         WHEREAS, in
connection with the Citigroup Loan Agreement, each of BHH and RMB agreed to
guaranty certain obligations of the Borrowers under certain conditions pursuant
to the Guaranty of Recourse Obligations made by BHH and RMB in favor of
Citigroup Global Markets Realty Corp., dated as of December 17, 2004 (the “Pratt
Guaranty Agreement”), under the Citigroup Loan Agreement (the “Pratt
Guaranty”);


 


J.                                        WHEREAS,
39.56977048% of Interests in Travis Tower were initially held by Behringer
Harvard Travis Tower S LP (“Travis Tower Seller”), a Delaware limited
partnership company formed by BHH, which in turn is controlled by RMB, and
Travis Tower Seller offered and sold those Interests to third parties not
related to the Company, BHH or their subsidiaries (the “Travis Tower TIC
Holders,” and together with the Colorado Building TIC Holders and the Pratt
TIC Holders, the “TIC Holders”);


 


K.                                    WHEREAS,
60.43022952% of the Interests in Travis Tower are held by Behringer Harvard
Travis Tower H LP (“Travis Tower Holder”), a Delaware limited
partnership and wholly owned subsidiary of Behringer OP;


 


L.                                      WHEREAS, each
of the Travis Tower TIC Holders and Travis Tower Holder became a “Borrower” (as
defined in the Bear Stearns Loan Agreement) under a loan agreement by and among
the Travis Tower TIC Holders, Travis Tower Holder and Bear Stearns Commercial
Mortgage, Inc., dated as of October 1, 2004 (the “Bear Stearns
Loan Agreement,” together with the Greenwich Loan Agreement and the
Citigroup Loan Agreement, the “Loan Agreements”);


 


M.                                 WHEREAS, in
connection with the Bear Stearns Loan Agreement, each of BHH and RMB agreed to
indemnify the lender for certain losses and guaranty certain obligations of the
Borrowers under certain conditions pursuant to the Indemnity Agreement made by
BHH and RMB in favor of Bear Stearns Commercial Mortgage, Inc., dated as
of October 1, 2004 (the “Travis Tower Guaranty Agreement,” together
with the Greenwich Guaranty Agreement and the Citigroup Guaranty Agreement, the
“Guaranty Agreements,” attached hereto as Exhibit A) under the Bear
Stearns Loan Agreement (the “Travis Tower Guaranty,” together with the
Colorado Building Guaranty and the Pratt Guaranty, the “Guaranties”);


 


N.                                    WHEREAS, the
Company, through Behringer OP, subsequently purchased all of the Interests
owned by the TIC Holders;


 


O.                                    WHEREAS, in
connection with the purchase of the outstanding Interests from the TIC Holders,
Behringer OP agreed to indemnify each of the TIC Holders for any losses or
liabilities they incurred in connection with or under the Loan Agreements as a
result of also being a Borrower;


 


P.                                      WHEREAS, the
Company’s board of directors acknowledges and agrees that BHH and RMB agreed to
enter into the Guaranty Agreements as an accommodation to all of the TIC
Holders and Borrowers;


 


Q.                                    WHEREAS, the
Company, through Behringer OP, controls all decisions relating to all of the
obligations arising under the Loan Agreements; and


 


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R.                                     WHEREAS,
consistent with its obligation to directors and officers and the Company’s
advisor and in consideration of BHH’s and RMB’s continued service to the
Company, the Company is desirous of reimbursing BHH and RMB should each of them
or either of them incur liabilities, costs or expenses each of them may incur
under the Guaranties.


 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the foregoing recitals and mutual covenants and
conditions hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:


 


1.                                       Incorporation of Recitals. The recitals
set forth above are hereby incorporated and made a part of this Agreement.


 


2.                                       Company Reimbursement.  Subject to the
terms and conditions contained herein, the Company shall reimburse BHH and RMB,
or either of them, and each of them, for the full amount of any Guaranteed
Obligations, that either or each of them has become, or may become, obligated
or liable for under the Guaranty Agreements. 
For purposes of this Agreement, “Guaranteed Obligations” (i) with
respect to the Colorado Building Guaranty Agreement and the Pratt Guaranty
Agreement, shall have the meaning ascribed to the term in each of the Colorado
Building Guaranty Agreement and the Pratt Guaranty Agreement, respectively and (ii) with
respect to the Travis Tower Guaranty Agreement, shall mean the indemnification
and guaranty obligations set forth in Sections 1 and 2 of that agreement.


 


3.                                       Reimbursement Notice.  Any request for reimbursement
shall be made in writing by the party seeking reimbursement and delivered to
the Company (a “Reimbursement Notice”). 
The Reimbursement Notice shall include a detailed and itemized list of
all Guaranteed Obligations for which BHH and RMB, or either of them, have
become obligated or incurred liability, including costs arising therefrom such
as the reasonable fees and costs of counsel.


 


4.                                       Company Response.  The Company shall either
object or pay all amounts set forth in the Reimbursement Notice within ten (10) business
days of receipt by check paid to the order of, or wire transfer to the account
of, BHH or RMB, as applicable.  If the
Company objects, it shall deliver notice to BHH or RMB, as applicable, of the
objection within fifteen (15) days of receiving the Reimbursement Notice
detailing the reasons for its objection (the “Objection Notice”);
provided, however, that the Company may not object to any amounts which
constitute Guaranteed Obligations; provided further that, the Objection Notice,
to be timely, shall be accompanied by a check or wire transfer for amounts not
in dispute including any portion of the Reimbursement Notice that seeks
reimbursement for Guaranteed Obligations.


 


5.                                       Notices. All notices or other
communications required or permitted to be given or delivered hereunder shall
be deemed to have been properly given or delivered to the following address: (i) when
delivered personally or by commercial messenger; (ii) one business day
following deposit with a recognized overnight courier service, provided the
deposit occurs prior to the deadline imposed by the overnight courier; or (iii) when
transmitted, if sent by facsimile copy, provided confirmation of receipt is
received by sender and the notice is sent by an additional method provided
hereunder, in each case above provided the notice or other communication is
addressed to the intended recipient thereof as set forth below.


 


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  Company:

  	
   

  	
  Behringer
  Harvard REIT I, Inc.

  
	
   

  	
   

  	
  15601
  Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison,
  TX 75001

  
	
   

  	
   

  	
  Attn:
  Chief Legal Officer

  
	
   

  	
   

  	
  Telephone:
  

  	
  (214)
  655-1600

  
	
   

  	
   

  	
  Facsimile:
  

  	
  (214)
  655-1610

  
	
   

  	
   

  	
   

  	
   

  
	
  BHH or RMB:

  	
   

  	
  Robert
  M. Behringer

  
	
   

  	
   

  	
  15601
  Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison,
  TX 75001

  
	
   

  	
   

  	
  Telephone:
  

  	
  (214)
  655-1600

  
	
   

  	
   

  	
  Facsimile:  

  	
  (214)
  655-1610

  



 


6.                                       Counterparts. This Agreement
may be executed in one or more counterparts, all or which taken together shall
constitute one and the same agreement, and shall become effective when the
counterparts have been signed by each party hereto and delivered to the other
parties hereto.


 


7.                                       Jurisdiction and Venue. This Agreement
shall be construed, performed and enforced in accordance with, and governed by,
the internal laws of the State of Texas,  without giving
effect to the principles of conflicts of laws thereof.  Venue for any action arising herefrom shall
be in Dallas, Dallas County, Texas, and the parties hereto submit themselves to
the jurisdiction of the state and federal courts of Dallas, Dallas County,
Texas.


 


8.                                       Amendments. This Agreement
may be amended or modified, and any of the terms, covenants, representations,
warranties or conditions hereof may be waived, only by a written instrument
executed by the parties hereto, or in the case of a waiver, by the party
waiving compliance.


 


9.                                       Headings. The
descriptive headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.


 


10.                                 Severability. In the event
that any part of this Agreement is declared by any court or other judicial or
administrative body to be null, void or unenforceable, said provision shall
survive to the extent it is not so declared, and all of the other provisions of
this Agreement shall remain in full force and effect.


 


11.                                 Successor and Assigns. All references
herein to the Company hereunder shall be deemed to include all successors and
assigns of the Company.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first above written.


 


	
   

  	
  BEHRINGER
  HARVARD REIT I, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert S. Aisner

  
	
   

  	
  Name:

  	
  Robert
  S. Aisner

  
	
   

  	
  Its:

  	
  Chief
  Executive Officer and President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD HOLDINGS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert M. Behringer

  
	
   

  	
  Name:

  	
  Robert
  M. Behringer

  
	
   

  	
  Its:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert M. Behringer

  
	
   

  	
   

  	
  Robert
  M. Behringer, Individually

  



 


5
















 


EXHIBIT A


 


GUARANTY AGREEMENTS


 

















 




 





 


GUARANTY OF RECOURSE OBLIGATIONS


 


made by


 


BEHRINGER HARVARD HOLDINGS,
LLC


 


And


 


 


ROBERT BEHRINGER


 


 


as guarantors,


 


in favor of


 


GREENWICH CAPITAL FINANCIAL
PRODUCTS, INC.


 


 


Dated as of August 9,
2004


 

















 


GUARANTY OF RECOURSE OBLIGATIONS


 


This GUARANTY
(this “Guaranty”),
dated as of August 9, 2004, made by  BEHRINGER HARVARD HOLDINGS, LLC, a Delaware limited liability company  (“Behringer Funds”),
having an address at Behringer Harvard Holdings, LLC, 1323  North Stemmons Freeway, Suite 200, Dallas, Texas 75207
and ROBERT BEHRINGER, an  individual (“Behringer”),
having an address at 1323 North Stemmons Freeway,  Suite 220,
Dallas, Texas 75207, (each, a “Guarantor”
and collectively,  “Guarantors”),
in favor of GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,
a  Delaware corporation
(together with its successors and assigns, hereinafter  referred to as “Lender”),
having an address at 600 Steamboat Road, Greenwich,  Connecticut
06830.  


 


R E C I T A L S:


 


A.                                   Pursuant to that certain Loan Agreement dated as of the date  hereof (as the same may be amended, modified, supplemented
or replaced from time  to
time, the “Loan Agreement”) between BEHRINGER HARVARD COLORADO BUILDING H,  LLC
(“Borrower”),
and those borrowers listed on Schedule 1 attached hereto and  Lender, Lender has agreed to make a loan (the “Loan”) to Borrower in the
maximum  principal amount of up to
$28,000,000, subject to the terms and conditions of  the
Loan Agreement;  


 


B.                                     As a condition to Lender’s making the Loan, Lender is requiring
that Guarantors execute and deliver to Lender this Guaranty; and


 


C.                                     Each Guarantor hereby acknowledges that it will materially benefit
from Lender’s agreeing to make the Loan;


 


NOW, THEREFORE, in consideration of the premises set forth herein and as  an inducement for and in consideration of the agreement of
Lender to make the  Loan
pursuant to the Loan Agreement, each Guarantor hereby agrees, covenants,  represents and warrants to Lender as follows:  


 


1.                                      Definitions.


 


(a)                                  All capitalized terms used and not defined herein shall have
the respective meanings given such terms in the Loan Agreement.


 


(b)                                 The term “Guaranteed
Obligations” means (i) subject to  the provisions of Sections 17 below, Borrower’s Recourse
Liabilities (the  “Recourse Liability Guaranteed Obligations”), and (ii) from and after the date  that any Springing Recourse Event occurs, subject to the
provisions of Sections  17
below, payment of the Guaranteed Amount (and whether accrued prior to, on or  after such date) (the “Springing Recourse
Guaranteed Obligations”).  


 

















 


(c)                                  The term “Guaranteed Amount”
means the amount for which  BEHRINGER HARVARD COLORADO BUILDING H, LLC and any other Borrower Controlled by  Guarantor is liable pursuant to Section 10.1(b) of
the Loan Agreement.  


 


2.                                      Guaranty.


 


(a)                                  Subject to the provisions of Sections 17 below, each  Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to  Lender
the full, prompt and complete payment when due of the Guaranteed  Obligations.


 


(b)                                 All sums payable to Lender under this Guaranty shall be  payable on demand and without reduction for any offset,
claim, counterclaim or  defense.


 


(c)                                  Subject to the provisions of Sections 17 below, each  Guarantor hereby agrees to indemnify, defend and save
harmless Lender from and  against
any and all costs, losses, liabilities, claims, causes of action,  expenses and damages, including reasonable attorneys’ fees
and disbursements,  which
Lender may suffer or which otherwise may arise by reason of Borrower’s  failure to pay any of the Guaranteed Obligations when due,
irrespective of  whether
such costs, losses, liabilities, claims, causes of action, expenses or  damages are incurred by Lender prior or subsequent to (i) Lender’s
declaring the  Principal,
interest and other sums evidenced or secured by the Loan Documents to  be due and payable, (ii) the commencement or completion
of a judicial or  non-judicial
foreclosure of the Mortgage or (iii) the conveyance of all or any  portion of the Property by deed-in-lieu of foreclosure.


 


(d)                                 Each Guarantor agrees that no portion of any sums  applied (other than sums received from Guarantor in full or
partial satisfaction  of
its obligations hereunder), from time to time, in reduction of the Debt shall  be deemed to have been applied in reduction of the
Guaranteed Obligations until  such
time as the Debt has been paid in full, or Guarantors shall have made the  full payment required hereunder, it being the intention
hereof that the  Guaranteed
Obligations shall be the last portion of the Debt to be deemed  satisfied.


 


3.                                      Representations and Warranties. Each Guarantor hereby represents  and
warrants (as to itself) to Lender as follows (which representations and  warranties shall be given as of the date hereof and shall
survive the execution  and
delivery of this Guaranty):


 


(a)                                  Organization, Authority and Execution. Behringer Funds  is
a limited liability company duly organized, validly existing and in good  standing under the laws of the State of Delaware, and has
all necessary power  and
authority to own its properties and to conduct its business as presently  conducted or proposed to be conducted and to enter into and
perform this  Guaranty
and all other agreements and instruments to be executed by it in  connection herewith. This Guaranty has been duly executed
and delivered by each  Guarantor.


 


(b)                                 Enforceability. This Guaranty constitutes a legal, valid  and binding obligation of each Guarantor, enforceable
against each Guarantor in  accordance
with its terms, except as enforceability may be limited by applicable  bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the  enforcement
of creditors’ rights generally.


 


2

















 


(c)                                  No Violation.
The execution, delivery and performance by  Guarantors
of their obligations under this Guaranty has been duly authorized by  all necessary action, and do not and will not violate any
law, regulation,  order,
writ, injunction or decree of any court or governmental body, agency or  other instrumentality applicable to a Guarantor, or result
in a breach of any of  the
terms, conditions or provisions of, or constitute a default under, or result  in the creation or imposition of any mortgage, lien, charge
or encumbrance of  any
nature whatsoever upon any of the assets of a Guarantor pursuant to the  terms of a Guarantor’s articles of organization, or any
mortgage, indenture,  agreement
or instrument to which a Guarantor is a party or by which it or any of  its properties is bound. No Guarantor is in default under
any other guaranty  which
it has provided to Lender.


 


(d)                                 No Litigation.
There are no actions, suits or  proceedings
at law or at equity, pending or, to each Guarantor’s best knowledge,  threatened against or affecting a Guarantor or which involve
or might involve  the
validity or enforceability of this Guaranty or which might materially  adversely affect the financial condition of a Guarantor or
the ability of a  Guarantor
to perform any of its obligations under this Guaranty. No Guarantor is  in default beyond any applicable grace or cure period with
respect to any order,  writ,
injunction, decree or demand of any Governmental Authority which might  materially adversely affect the financial condition of such
Guarantor or the  ability
of such Guarantor to perform any of its obligations under this Guaranty.


 


(e)                                  Consents.
All consents, approvals, orders or  authorizations
of, or registrations, declarations or filings with, all  Governmental Authorities (collectively, the “Consents”) that are required
in  connection with the valid
execution, delivery and performance by Guarantors of  this
Guaranty have been obtained and each Guarantor agrees that all Consents  required in connection with the carrying out or performance
of any of such  Guarantor’s
obligations under this Guaranty will be obtained when required.


 


(f)                                    Financial Statements and Other Information. All  financial
statements of Guarantors heretofore delivered to Lender are true and  correct in all material respects and fairly present the
financial condition of  Guarantors
as of the respective dates thereof, and no materially adverse change  has occurred in the financial conditions reflected therein
since the respective  dates
thereof. None of the aforesaid financial statements or any certificate or  statement furnished to Lender by or on behalf of a Guarantor
in connection with  the
transactions contemplated hereby, and none of the representations and  warranties in this Guaranty contains any untrue statement of
a material fact or  omits
to state a material fact necessary in order to make the statements  contained therein or herein not misleading. No Guarantor is
insolvent within the  meaning
of the United States Bankruptcy Code or any other applicable law, code  or regulation and the execution, delivery and performance of
this Guaranty will  not
render any Guarantor insolvent.


 


(g)                                 Consideration.
Each Guarantor is the owner, directly or  indirectly,
of legal and beneficial equity interests in Borrower, and as such  will materially benefit from the making of the Loan.


 


4.                                      Financial Statements. BEHRINGER FUNDS shall deliver to Lender,  (a) within 120 days after the end of each fiscal year
of BEHRINGER FUNDS, a  complete
copy


 


3

















 


of BEHRINGER FUNDS’ annual financial
statements, (b) if requested by Lender,  within
60 days after the end of each fiscal quarter of BEHRINGER FUNDS,  financial statements (including a balance sheet as of the
end of such fiscal  quarter
and a statement of income and expense for such fiscal quarter) certified  by BEHRINGER FUNDS and in form, content, level of detail and
scope reasonably  satisfactory
to Lender, and (c) 20 days after request by Lender, such other  financial information with respect to BEHRINGER FUNDS as
Lender may reasonably  request.
BEHRINGER shall deliver to Lender, (a) within 120 days after the end of  each fiscal year of BEHRINGER, a certificate indicating
BEHRINGER’s net worth  (accompanied
by backup satisfactory to Lender) and (b) 20 days after request by  Lender, such other financial information with respect to
BEHRINGER as Lender may  reasonably
request.


 


5.                                      Unconditional Character of Obligations of Guarantors.


 


(a)                                  The obligations of Guarantors hereunder shall be  irrevocable, absolute and unconditional, irrespective of the
validity,  regularity or enforceability,
in whole or in part, of the other Loan Documents  or
any provision thereof, or the absence of any action to enforce the same, any  waiver or consent with respect to any provision thereof, the
recovery of any  judgment
against Borrower, a Guarantor or any other Person or any action to  enforce the same, any failure or delay in the enforcement of
the obligations of  Borrower
under the other Loan Documents or Guarantors under this Guaranty, or  any setoff, counterclaim, and irrespective of any other
circumstances which  might
otherwise limit recourse against a Guarantor by Lender or constitute a  legal or equitable discharge or defense of a guarantor or
surety. Lender may  enforce
the obligations of any Guarantor under this Guaranty by a proceeding at  law, in equity or otherwise, independent of any loan
foreclosure or similar  proceeding
or any deficiency action against Borrower or any other Person at any  time, either before or after an action against the Property
or any part thereof,  Borrower
or any other Person. This Guaranty is a
guaranty of payment and  performance and not merely a guaranty of
collection. Each
Guarantor waives  diligence,
notice of acceptance of this Guaranty, filing of claims with any  court, any proceeding to enforce any provision of any other
Loan Document,  against
such Guarantor, Borrower or any other Person, any right to require a  proceeding first against Borrower or any other Person, or to
exhaust any  security (including, without
limitation, the Property) for the performance of  the
Guaranteed Obligations or any other obligations of Borrower or any other  Person, or any protest, presentment, notice of default or
other notice or demand  whatsoever
(except to the extent expressly provided to the contrary in this  Guaranty).


 


(b)                                 The obligations of Guarantors under this Guaranty, and  the rights of Lender to enforce the same by proceedings,
whether by action at  law,
suit in equity or otherwise, shall not be in any way affected by any of the  following:


 


(i)                                     any insolvency, bankruptcy, liquidation,  reorganization, readjustment, composition, dissolution,
receivership,  conservatorship,
winding up or other similar proceeding involving or  affecting
Borrower, the Property or any part thereof, a Guarantor or any  other Person;


 


(ii)                                  any failure by Lender or any other Person,  whether or not without fault on its part, to perform or
comply with any  of
the terms of the Loan


 


4

















 


Agreement, or any other Loan
Documents, or any document or instrument relating thereto;


 


(iii)                               the sale, transfer or conveyance of the Property  or any interest therein to any Person, whether now or
hereafter having  or
acquiring an interest in the Property or any interest therein and  whether or not pursuant to any foreclosure, trustee sale or
similar  proceeding against Borrower
or the Property or any interest therein;  


 


(iv)                              the conveyance to Lender, any Affiliate of  Lender or Lender’s nominee of the Property or any interest
therein by a  deed-in-lieu
of foreclosure;


 


(v)                                 the release of Borrower or any other Person from  the performance or observance of any of the agreements,
covenants, terms  or
conditions contained in any of the Loan Documents by operation of law  or otherwise;


 


(vi)                              the release in whole or in part of any  collateral for any or all Guaranteed Obligations or for the
Loan or any  portion thereof; or


 


(vii)                           the transfer to and assumption by any Person of  any tenancy in common interest in the Property pursuant to
Section  5.26.2 of the Loan Agreement
(whether prior to, contemporaneous herewith  or
subsequent hereto), and the execution and delivery of any other  guaranty of recourse obligations by any other guarantor in
accordance  with the terms thereof.


 


(c)                                  Except as otherwise specifically provided in this  Guaranty, each Guarantor hereby expressly and irrevocably
waives all defenses in  an
action brought by Lender to enforce this Guaranty based on claims of waiver,  release, surrender, alteration or compromise and all
setoffs, reductions, or  impairments,
whether arising hereunder or otherwise.


 


(d)                                 Lender may deal with Borrower and Affiliates of Borrower  in the same manner and as freely as if this Guaranty did not
exist and shall be  entitled,
among other things, to grant Borrower or any other Person such  extension or extensions of time to perform any act or acts
as may be deemed  advisable
by Lender, at any time and from time to time, without terminating,  affecting or impairing the validity of this Guaranty or the
obligations of  Guarantors
hereunder.


 


(e)                                  No compromise, alteration, amendment, modification,  extension, renewal, release or other change of, or waiver,
consent, delay,  omission,
failure to act or other action with respect to, any liability or  obligation under or with respect to, or of any of the terms,
covenants or  conditions
of, the Loan Documents shall in any way alter, impair or affect any  of the obligations of Guarantors hereunder, and Guarantors
agree that if any  Loan
Document are modified with Lender’s consent, the Guaranteed Obligations  shall automatically be deemed modified to include such
modifications.


 


(f)                                    Lender may proceed to protect and enforce any or all of  its rights under this Guaranty by suit in equity or action
at law, whether for  the
specific performance of any covenants or agreements contained in this  Guaranty or otherwise, or to take any action authorized or
permitted under  applicable
law, and shall be entitled to require and enforce the


 


5

















 


performance of all acts and things
required to be performed hereunder by Guarantors. Each and every remedy of
Lender shall, to the extent permitted by law, be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter existing at
law or in equity.


 


(g)                                 No waiver shall be deemed to have been made by Lender of any
rights hereunder unless the same shall be in writing and signed by Lender, and
any such waiver shall be a waiver only with respect to the specific matter involved
and shall in no way impair the rights of Lender or the obligations of Guarantors
to Lender in any other respect or at any other time.


 


(h)                                 At the option of Lender, any Guarantor may be joined in any
action or proceeding commenced by Lender against Borrower in connection with or
based upon any other Loan Documents and recovery may be had against any Guarantor
in such action or proceeding or in any independent action or proceeding against
such Guarantor to the extent of such Guarantor’s liability hereunder, without
any requirement that Lender first assert, prosecute or exhaust any remedy or
claim against Borrower or any other Person, or any security for the obligations
of Borrower or any other Person.


 


(i)                                     Guarantors agree that this Guaranty shall continue to be effective
or shall be reinstated, as the case may be, if at any time any payment is made
by Borrower or a Guarantor to Lender and such payment is rescinded or must
otherwise be returned by Lender (as determined by Lender in its sole and absolute
discretion) upon insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, dissolution, receivership, conservatorship, winding up or other
similar proceeding involving or affecting Borrower or a Guarantor, all as
though such payment had not been made.


 


(j)                                     In the event that any Guarantor shall advance or become obligated
to pay any sums under this Guaranty or in connection with the Guaranteed
Obligations or in the event that for any reason whatsoever Borrower or any
subsequent owner of the Property or any part thereof is now, or shall hereafter
become, indebted to a Guarantor, such Guarantor agrees that (i) the amount
of such sums and of such indebtedness and all interest thereon shall at all
times be subordinate as to lien, the time of payment and in all other respects
to all sums, including principal and interest and other amounts, at any time
owed to Lender under the Loan Documents, and (ii) such Guarantor shall not
be entitled to enforce or receive payment thereof until all principal, Interest
and other sums due pursuant to the Loan Documents have been paid in full. Nothing
herein contained is intended or shall be construed to give any Guarantor any
right of subrogation in or under the Loan Documents or any right to participate
in any way therein, or in the right, title or interest of Lender in or to any
collateral for the Loan, notwithstanding any payments made by a Guarantor under
this Guaranty, until the actual and irrevocable receipt by Lender of payment in
full of all principal, Interest and other sums due with respect to the
Loan or otherwise payable under the Loan Documents. If any amount shall be paid
to a Guarantor on account of such subrogation rights at any time when any such
sums due and owing to Lender shall not have been fully paid, such amount shall
be paid by such Guarantor to Lender for credit and application against such
sums due and owing to Lender.


 


6

















 


(k)                                  Guarantors’ obligations hereunder shall survive a foreclosure,
deed-in-lieu of foreclosure or similar proceeding involving the Property and
the exercise by Lender of any of all of its remedies pursuant to the Loan
Documents.


 


6.                                      Covenants.


 


(a)                                  As used in this Section 6, the following terms shall have
the respective meanings set forth below:


 


(i)                                     “GAAP” shall mean generally accepted accounting principles,
consistently applied.


 


(ii)                                  “Liquid Assets” shall mean assets in the form of cash, cash equivalents,
obligations of (or fully guaranteed as to principal and interest by) the United
States or any agency or instrumentality thereof (provided the full faith and
credit of the United States supports such obligation or guarantee),
certificates of deposit issued by a commercial bank having net assets of not
less than $500 million, securities listed and traded on a recognized stock exchange
or traded over the counter and listed in the National Association of Securities
Dealers Automatic Quotations, or liquid debt instruments that have a readily
ascertainable value and are regularly traded in a recognized financial market.


 


(iii)                               “Net Worth” shall mean, as of a given date, (x) the total assets of a
Guarantor as of such date less (y) such Guarantor’s total liabilities as
of such date, determined in accordance with GAAP.


 


(b)                                 No Guarantor shall, at any time while a default in the payment
of the Guaranteed Obligations has occurred and is continuing, either (i) enter
into or effectuate any transaction with any Affiliate which would reduce the
Net Worth of such Guarantor, including the payment of any dividend or distribution
to a shareholder, or the redemption, retirement, purchase or other acquisition
for consideration of any stock in such Guarantor or (ii) sell, pledge,
mortgage or otherwise transfer to any Person any of such Guarantor’s assets, or
any interest therein, except for fair value.


 


7.                                      Entire Agreement/Amendments. This instrument represents the entire agreement between the
parties with respect to the subject matter hereof. The terms of this Guaranty
shall not be waived, altered, modified, amended, supplemented or terminated in
any manner whatsoever except by written instrument signed by Lender and
Guarantors.


 


8.                                      Successors and Assigns. This Guaranty shall be binding upon each Guarantor, and
such Guarantor’s estate, heirs, personal representatives, successors and
assigns, may not be assigned or delegated by any Guarantor and shall inure to
the benefit of Lender and its successors and assigns.


 


9.                                      Applicable Law and Consent to Jurisdiction. This Guaranty shall be governed by, and construed in
accordance with, the substantive laws of the State of New York. Each Guarantor
irrevocably (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Guaranty may be brought in a court of record
in the City and County of New


 


7

















 


York or in the Courts of the United
States of America located in the Southern District of New York, (b) consents
to the jurisdiction of each such court in any such suit, action or proceeding
and (c) waives any objection which it may have to the laying of venue of
any such suit, action or proceeding in any of such courts and any claim that
any such suit, action or proceeding has been brought in an inconvenient forum.
Each Guarantor irrevocably consents to the service of any and all process in
any such suit, action or proceeding by service of copies of such process to
such Guarantor at its address provided in Section 14 hereof. Nothing in
this Section 9, however, shall affect the right of Lender to serve legal
process in any other manner permitted by law or affect the right of Lender to
bring any suit, action or proceeding against any Guarantor or its property in the
courts of any other jurisdictions.


 


10.                               Section Headings. The headings of the sections and paragraphs ofthis Guaranty
have been inserted for convenience of reference only and shall in no way
define, modify, limit or amplify any of the terms or provisions hereof.


 


11.                               Severability.
Any provision of this Guaranty which may be determined by any competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, each Guarantor hereby waives any provision of law
which renders any provision hereof prohibited or unenforceable in any respect.


 


12.                               WAIVER OF TRIAL BY JURY. EACH GUARANTOR HEREBY WAIVES THE RIGHT OF TRIAL BY JURY IN
ANY LITIGATION, ACTION OR PROCEEDING ARISING HEREUNDER OR IN CONNECTION
THEREWITH.


 


13.                               Other Guaranties. This Guaranty is in addition to any and all other
guaranties relating to the Debt or any portion thereof. Subject to the provisions
of Section 17 below, to the extent a Guarantor may become liable under
this Guaranty and one or more other guarantors may become liable under the terms
of any other guaranty made in favor of Lender with respect to the Debt, Lender
shall be entitled to exercise any and all of its remedies against Guarantors
under this Guaranty as well any and all of its remedies against any one or more
guarantors under such other guaranties jointly and severally.


 


14.                               Notices.
All notices, consents, approvals and requests required or permitted hereunder
(a “Notice”) shall be given in writing
and shall be effective for all purposes if either hand delivered with receipt
acknowledged, or by a nationally recognized overnight delivery service (such as
Federal Express), or by certified or registered United States mail, return
receipt requested, postage prepaid, or by facsimile and confirmed by facsimile
answer back, in each case addressed as follows (or to such other address or
Person as a party shall designate from time to time by notice to the other
party): If to Lender: Greenwich Capital Financial Products, Inc., 600
Steamboat Road, Greenwich, Connecticut 06830, Attention: Mortgage Loan
Department, Telecopier (203) 618-2052 and to Greenwich Capital Financial
Products, Inc., 600 Steamboat Road, Greenwich, Connecticut 06830,
Attention: Legal Department, Telecopier (203) 629-5718, with a copy to: Kaye
Scholer LLP, 425 Park Avenue, New York, New York 10022, Attention: Stephen
Gliatta, Esq., Telecopier: (212) 836-8689; if to Guarantor: 1323 North


 


8

















 


Stemmons Freeway, Suite 200,
Dallas, Texas 75207, Attention: Chief Legal Counsel, Telecopier: (214)
655-1610, and 1323 North Stemmons Freeway, Suite 220, Dallas, Texas 75207,
Telecopier: (214) 655-1610. A notice shall be deemed to have been given: in the
case of hand delivery, at the time of delivery; in the case of registered or
certified mail, when delivered or the first attempted delivery on a Business
Day; or in the case of overnight delivery, upon the first attempted delivery on
a Business Day.


 


15.                               Guarantor’s Receipt of Loan Documents. Each Guarantor by its execution hereof acknowledges receipt
of true copies of all of the Loan Documents, the terms and conditions of which
are hereby incorporated herein by reference.


 


16.                               Interest; Expenses.


 


(a)                                  If Guarantors fail to pay all or any sums due hereunder upon
demand by Lender, the amount of such sums payable by Guarantors to Lender shall
bear interest from the date of demand until paid at the Default Rate in effect
from time to time.


 


(b)                                 Each Guarantor hereby agrees to pay all costs, charges and
expenses, including reasonable attorneys’ fees and disbursements, that may be
incurred by Lender in enforcing the covenants, agreements, obligations and liabilities
of Guarantors under this Guaranty.


 


17.                               Limitation on Liability. Notwithstanding anything to the contrary contained herein
or in any other Loan Document, it is expressly understood and agreed that no
Guarantor hereunder shall be liable for any Recourse Liability Guaranteed
Obligation or any Springing Recourse Guaranteed Obligation, which in either
case is the obligation of Borrower (pursuant to Section 10.1 of the Loan
Agreement) other than BEHRINGER HARVARD COLORADO BUILDING H, LLC.


 


18.                               Joint and Several Obligations. Each Guarantor shall have joint and several liability for
the obligations of Guarantors hereunder. 


 


19.                               Counterparts.
This Guaranty may be executed in any number of counterparts, each of which when
so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.


 


9

















 


IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the date
first above written.


 


	
   

  	
  BEHRINGER HARVARD HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gerald
  J. Reihsen, III 

  
	
   

  	
   

  	
  Name: Gerald J. Reihsen, III 

  
	
   

  	
   

  	
  Title: Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/
  Robert Behringer

  
	
   

  	
  ROBERT BEHRINGER, individually

  



 

















 


SCHEDULE 1


 


List of Initial TIC Borrowers


 


TIC Colorado Building 2, LLC


TIC Colorado Building 3, LLC


TIC Colorado Building 4, LLC


TIC Colorado Building 5, LLC


TIC Colorado Building 6, LLC


TIC Colorado Building 7, LLC


TIC Colorado Building 8, LLC


TIC Colorado Building 10, LLC


 






 












 


	
   

  



 


 


GUARANTY OF RECOURSE OBLIGATIONS


 


made by


 


BEHRINGER HARVARD HOLDINGS, LLC


 


And


 


ROBERT BEHRINGER


 


 


as guarantors,


 


in favor of


 


CITIGROUP GLOBAL MARKETS REALTY CORP.


 


 


Dated as of December 17, 2004


 

















 


GUARANTY OF RECOURSE OBLIGATIONS


 


This
GUARANTY (this “Guaranty”),
dated as of December 17, 2004, made by BEHRINGER
HARVARD HOLDINGS, LLC, a Delaware limited liability company (“Behringer Funds”), having an
address at Behringer Harvard Holdings, LLC, 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001, and ROBERT BEHRINGER,
an individual (“Behringer”), having an
address at 15601 Dallas Parkway, Suite 600, Addison, Texas  75001, (each, a “Guarantor”
and collectively, “Guarantors”), in favor of CITIGROUP GLOBAL MARKETS REALTY CORP., a New York corporation
(together with its successors and assigns, hereinafter referred to as “Lender”),
having an address at 388 Greenwich Street, Floor 11, New York, New York  10013.


 


R  E  C  I  T  A  L
S:


 


A.            Pursuant to that certain Loan Agreement dated as of the date hereof (as
the same may be amended, modified, supplemented or replaced from time to time,
the “Loan Agreement”)
between BEHRINGER HARVARD PRATT H, LLC, a
Delaware limited liability company  (“Borrower”), and those  borrowers listed on Schedule 1 attached
hereto and Lender, Lender has agreed to make a loan (the “Loan”) to Borrower in the
maximum principal amount of up to $37,000,000, subject to the terms and
conditions of the Loan Agreement;


 


B.            As a condition to Lender’s making the Loan, Lender is requiring that
Guarantors execute and deliver to Lender this Guaranty; and


 


C.            Each Guarantor hereby acknowledges that it will materially benefit from
Lender’s agreeing to make the Loan;


 


NOW, THEREFORE, in consideration of the premises set forth
herein and as an inducement for and in consideration of the agreement of Lender
to make the Loan pursuant to the Loan Agreement, each Guarantor hereby agrees,
covenants, represents and warrants to Lender as follows:


 


1.             Definitions.


 


(a)           All capitalized terms used and not defined herein shall have the
respective meanings given such terms in the Loan Agreement.


 


(b)           The term “Guaranteed
Obligations” means (i) subject to the provisions of
Sections 17 below, Borrower’s Recourse Liabilities (the “Recourse Liability Guaranteed Obligations”),
and (ii) from and after the date that any Springing Recourse Event occurs,
subject to the provisions of Sections 17 below, payment of the Guaranteed
Amount (and whether accrued prior to, on or after such date) (the “Springing Recourse Guaranteed Obligations”).


 

















 


(c)           The term “Guaranteed
Amount” means the amount for which BEHRINGER HARVARD PRATT H,
LLC and any other Borrower Controlled by Guarantor is liable pursuant to Section 10.1(b) of
the Loan Agreement.


 


2.             Guaranty.


 


(a)           Subject to the provisions of Sections 17 below, each Guarantor hereby
irrevocably, absolutely and unconditionally guarantees to Lender the full,
prompt and complete payment when due of the Guaranteed Obligations.


 


(b)           All sums payable to Lender under this Guaranty shall be payable on demand
and without reduction for any offset, claim, counterclaim or defense.


 


(c)           Subject to the provisions of Sections 17 below, each Guarantor hereby
agrees to indemnify, defend and save harmless Lender from and against any and
all costs, losses, liabilities, claims, causes of action, expenses and damages,
including reasonable attorneys’ fees and disbursements, which Lender may suffer
or which otherwise may arise by reason of Borrower’s failure to pay any of the
Guaranteed Obligations when due, irrespective of whether such costs, losses,
liabilities, claims, causes of action, expenses or damages are incurred by
Lender prior or subsequent to (i) Lender’s declaring the Principal,
interest and other sums evidenced or secured by the Loan Documents to be due and
payable, (ii) the commencement or completion of a judicial or non-judicial
foreclosure of the Mortgage or (iii) the conveyance of all or any portion
of the Property by deed-in-lieu of foreclosure.


 


(d)           Each Guarantor agrees that no portion of any sums applied (other than
sums received from Guarantor in full or partial satisfaction of its obligations
hereunder), from time to time, in reduction of the Debt shall be deemed to have
been applied in reduction of the Guaranteed Obligations until such time as the
Debt has been paid in full, or Guarantors shall have made the full payment
required hereunder, it being the intention hereof that the Guaranteed
Obligations shall be the last portion of the Debt to be deemed satisfied.


 


3.             Representations and Warranties.  Each
Guarantor hereby represents and warrants (as to itself) to Lender as follows
(which representations and warranties shall be given as of the date hereof and
shall survive the execution and delivery of this Guaranty):


 


(a)           Organization, Authority and Execution.  Behringer Funds is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware, and has all necessary power and authority to own its
properties and to conduct its business as presently conducted or proposed to be
conducted and to enter into and perform this Guaranty and all other agreements
and instruments to be executed by it in connection herewith.  This Guaranty has been duly executed and delivered
by each Guarantor.


 


(b)           Enforceability.  This Guaranty constitutes a legal, valid and
binding obligation of each Guarantor, enforceable against each Guarantor in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally.


 


2

















 


(c)           No Violation.  The execution, delivery and performance
by  Guarantors of their obligations under
this Guaranty has been duly authorized by all necessary action, and do not and
will not violate any law, regulation, order, writ, injunction or decree of any
court or governmental body, agency or other instrumentality applicable to a
Guarantor, or result in a breach of any of the terms, conditions or provisions
of, or constitute a default under, or result in the creation or imposition of
any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of
the assets of a Guarantor pursuant to the terms of a Guarantor’s articles of
organization, or any mortgage, indenture, agreement or instrument to which a
Guarantor is a party or by which it or any of its properties is bound.  No Guarantor is in default under any other
guaranty which it has provided to Lender.


 


(d)           No Litigation.  There are no actions, suits or proceedings at
law or at equity, pending or, to each Guarantor’s best knowledge, threatened
against or affecting a Guarantor or which involve or might involve the validity
or enforceability of this Guaranty or which might materially adversely affect
the financial condition of a Guarantor or the ability of a Guarantor to perform
any of its obligations under this Guaranty. 
No Guarantor is in default beyond any applicable grace or cure period
with respect to any order, writ, injunction, decree or demand of any
Governmental Authority which might materially adversely affect the financial
condition of such Guarantor or the ability of such Guarantor to perform any of
its obligations under this Guaranty.


 


(e)           Consents.  All consents, approvals, orders or
authorizations of, or registrations, declarations or filings with, all
Governmental Authorities (collectively, the “Consents”) that are required in connection with the
valid execution, delivery and performance by Guarantors of this Guaranty have
been obtained and each Guarantor agrees that all Consents required in
connection with the carrying out or performance of any of such Guarantor’s
obligations under this Guaranty will be obtained when required.


 


(f)            Financial Statements and Other Information.  All financial statements of
Guarantors heretofore delivered to Lender are true and correct in all material
respects and fairly present the financial condition of Guarantors as of the
respective dates thereof, and no materially adverse change has occurred in the
financial conditions reflected therein since the respective dates thereof.  None of the aforesaid financial statements or
any certificate or statement furnished to Lender by or on behalf of a Guarantor
in connection with the transactions contemplated hereby, and none of the
representations and warranties in this Guaranty contains any untrue statement
of a material fact or omits to state a material fact necessary in order to make
the statements contained therein or herein not misleading.  No Guarantor is insolvent within the meaning
of the United States Bankruptcy Code or any other applicable law, code or
regulation and the execution, delivery and performance of this Guaranty will
not render any Guarantor insolvent.


 


(g)           Consideration.  Each Guarantor is the owner, directly or
indirectly, of legal and beneficial equity interests in Borrower, and as such
will materially benefit from the making of the Loan.


 


4.             Financial Statements. 
BEHRINGER FUNDS shall deliver to Lender, (a) within 120 days after
the end of each fiscal year of BEHRINGER FUNDS, a complete copy 


 


3

















 


of BEHRINGER FUNDS’
annual financial statements, (b) if requested by Lender, within 60 days
after the end of each fiscal quarter of BEHRINGER FUNDS, financial statements
(including a balance sheet as of the end of such fiscal quarter and a statement
of income and expense for such fiscal quarter) certified by BEHRINGER FUNDS and
in form, content, level of detail and scope reasonably satisfactory to Lender,
and (c) 20 days after request by Lender, such other financial information
with respect to BEHRINGER FUNDS as Lender may reasonably request.  BEHRINGER shall deliver to Lender,
(a) within 120 days after the end of each fiscal year of BEHRINGER, a
certificate indicating BEHRINGER’s net worth (accompanied by backup
satisfactory to Lender) and (b) 20 days after request by Lender, such
other financial information with respect to BEHRINGER as Lender may reasonably
request.


 


5.             Unconditional Character of Obligations of
Guarantors.


 


(a)           The obligations of Guarantors hereunder shall be irrevocable, absolute
and unconditional, irrespective of the validity, regularity or enforceability,
in whole or in part, of the other Loan Documents or any provision thereof, or
the absence of any action to enforce the same, any waiver or consent with
respect to any provision thereof, the recovery of any judgment against
Borrower, a Guarantor or any other Person or any action to enforce the same, any
failure or delay in the enforcement of the obligations of Borrower under the
other Loan Documents or Guarantors under this Guaranty, or any setoff,
counterclaim, and irrespective of any other circumstances which might otherwise
limit recourse against a Guarantor by Lender or constitute a legal or equitable
discharge or defense of a guarantor or surety. 
Lender may enforce the obligations of any Guarantor under this Guaranty
by a proceeding at law, in equity or otherwise, independent of any loan
foreclosure or similar proceeding or any deficiency action against Borrower or
any other Person at any time, either before or after an action against the
Property or any part thereof, Borrower or any other Person.  This
Guaranty is a guaranty of payment and performance and not merely a guaranty of
collection.  Each Guarantor
waives diligence, notice of acceptance of this Guaranty, filing of claims with
any court, any proceeding to enforce any provision of any other Loan Document,
against such Guarantor, Borrower or any other Person, any right to require a
proceeding first against Borrower or any other Person, or to exhaust any
security (including, without limitation, the Property) for the performance of
the Guaranteed Obligations or any other obligations of Borrower or any other
Person, or any protest, presentment, notice of default or other notice or
demand whatsoever (except to the extent expressly provided to the contrary in
this Guaranty).


 


(b)           The obligations of Guarantors under this Guaranty, and the rights of Lender
to enforce the same by proceedings, whether by action at law, suit in equity or
otherwise, shall not be in any way affected by any of the following:


 


(i)            any insolvency, bankruptcy, liquidation, reorganization, readjustment,
composition, dissolution, receivership, conservatorship, winding up or other
similar proceeding involving or affecting Borrower, the Property or any part
thereof, a Guarantor or any other Person;


 


(ii)           any failure by Lender or any other Person, whether or not without fault
on its part, to perform or comply with any of the terms of the Loan 


 


4

















 


Agreement, or any other
Loan Documents, or any document or instrument relating thereto;


 


(iii)          the sale, transfer or conveyance of the Property or any interest therein
to any Person, whether now or hereafter having or acquiring an interest in the
Property or any interest therein and whether or not pursuant to any
foreclosure, trustee sale or similar proceeding against Borrower or the
Property or any interest therein;


 


(iv)          the conveyance to Lender, any Affiliate of Lender or Lender’s nominee of
the Property or any interest therein by a deed-in-lieu of foreclosure;


 


(v)           the release of Borrower or any other Person from the performance or
observance of any of the agreements, covenants, terms or conditions contained
in any of the Loan Documents by operation of law or otherwise;


 


(vi)          the release in whole or in part of any collateral for any or all
Guaranteed Obligations or for the Loan or any portion thereof; or


 


(vii)         the
transfer to and assumption by any Person of any tenancy in common interest in
the Property pursuant to Section 5.26.2 of the Loan Agreement (whether
prior to, contemporaneous herewith or subsequent hereto), and the execution and
delivery of any other guaranty of recourse obligations by any other guarantor
in accordance with the terms thereof.


 


(c)           Except as otherwise specifically provided in this Guaranty, each
Guarantor hereby expressly and irrevocably waives all defenses in an action brought
by Lender to enforce this Guaranty based on claims of waiver, release,
surrender, alteration or compromise and all setoffs, reductions, or
impairments, whether arising hereunder or otherwise.


 


(d)           Lender may deal with Borrower and Affiliates of Borrower in the same
manner and as freely as if this Guaranty did not exist and shall be entitled,
among other things, to grant Borrower or any other Person such extension or
extensions of time to perform any act or acts as may be deemed advisable by
Lender, at any time and from time to time, without terminating, affecting or
impairing the validity of this Guaranty or the obligations of Guarantors
hereunder.


 


(e)           No compromise, alteration, amendment, modification, extension, renewal,
release or other change of, or waiver, consent, delay, omission, failure to act
or other action with respect to, any liability or obligation under or with
respect to, or of any of the terms, covenants or conditions of, the Loan
Documents shall in any way alter, impair or affect any of the obligations of
Guarantors hereunder, and Guarantors agree that if any Loan Document are
modified with Lender’s consent, the Guaranteed Obligations shall automatically
be deemed modified to include such modifications.


 


(f)            Lender may proceed to protect and enforce any or all of its rights under
this Guaranty by suit in equity or action at law, whether for the specific
performance of any covenants or agreements contained in this Guaranty or
otherwise, or to take any action authorized or permitted under applicable law,
and shall be entitled to require and enforce the 


 


5

















 


performance of all acts and things required to be
performed hereunder by Guarantors.  Each
and every remedy of Lender shall, to the extent permitted by law, be cumulative
and shall be in addition to any other remedy given hereunder or now or
hereafter existing at law or in equity.


 


(g)           No waiver shall be deemed to have been made by Lender of any rights
hereunder unless the same shall be in writing and signed by Lender, and any
such waiver shall be a waiver only with respect to the specific matter involved
and shall in no way impair the rights of Lender or the obligations of
Guarantors to Lender in any other respect or at any other time.


 


(h)           At the option of Lender, any Guarantor may be joined in any action or
proceeding commenced by Lender against Borrower in connection with or based
upon any other Loan Documents and recovery may be had against any Guarantor in
such action or proceeding or in any independent action or proceeding against
such Guarantor to the extent of such Guarantor’s liability hereunder, without
any requirement that Lender first assert, prosecute or exhaust any remedy or
claim against Borrower or any other Person, or any security for the obligations
of Borrower or any other Person.


 


(i)            Guarantors agree that this Guaranty shall continue to be effective or
shall be reinstated, as the case may be, if at any time any payment is made by
Borrower or a Guarantor to Lender and such payment is rescinded or must
otherwise be returned by Lender (as determined by Lender in its sole and
absolute discretion) upon insolvency, bankruptcy, liquidation, reorganization,
readjustment, composition, dissolution, receivership, conservatorship, winding
up or other similar proceeding involving or affecting Borrower or a Guarantor,
all as though such payment had not been made.


 


(j)            In the event that any Guarantor shall advance or become obligated to pay
any sums under this Guaranty or in connection with the Guaranteed Obligations
or in the event that for any reason whatsoever Borrower or any subsequent owner
of the Property or any part thereof is now, or shall hereafter become, indebted
to a Guarantor, such Guarantor agrees that (i) the amount of such sums and
of such indebtedness and all interest thereon shall at all times be subordinate
as to lien, the time of payment and in all other respects to all sums,
including principal and interest and other amounts, at any time owed to Lender
under the Loan Documents, and (ii) such Guarantor shall not be entitled to
enforce or receive payment thereof until all principal, Interest and other
sums due pursuant to the Loan Documents have been paid in full.  Nothing herein contained is intended or shall
be construed to give any Guarantor any right of subrogation in or under the
Loan Documents or any right to participate in any way therein, or in the right,
title or interest of Lender in or to any collateral for the Loan,
notwithstanding any payments made by a Guarantor under this Guaranty, until the
actual and irrevocable receipt by Lender of payment in full of all principal, Interest
and other sums due with respect to the Loan or otherwise payable under the Loan
Documents.  If any amount shall be paid
to a Guarantor on account of such subrogation rights at any time when any such
sums due and owing to Lender shall not have been fully paid, such amount shall
be paid by such Guarantor to Lender for credit and application against such
sums due and owing to Lender.


 


6

















 


(k)           Guarantors’ obligations hereunder shall survive a foreclosure,
deed-in-lieu of foreclosure or similar proceeding involving the Property and
the exercise by Lender of any of all of its remedies pursuant to the Loan
Documents.


 


6.             Covenants.


 


(a)           As used in this Section 6, the following terms shall have the
respective meanings set forth below:


 


(i)            “GAAP” shall mean
generally accepted accounting principles, consistently applied.


 


(ii)           “Liquid Assets”
shall mean assets in the form of cash, cash equivalents, obligations of (or
fully guaranteed as to principal and interest by) the United States or any
agency or instrumentality thereof (provided the full faith and credit of the
United States supports such obligation or guarantee), certificates of deposit
issued by a commercial bank having net assets of not less than $500 million,
securities listed and traded on a recognized stock exchange or traded over the
counter and listed in the National Association of Securities Dealers Automatic
Quotations, or liquid debt instruments that have a readily ascertainable value
and are regularly traded in a recognized financial market.


 


(iii)          “Net Worth” shall
mean, as of a given date,  (x) the
total assets of a Guarantor as of such date less (y) such Guarantor’s
total liabilities as of such date, determined in accordance with GAAP.


 


(b)           No Guarantor shall, at any time while a default in the payment of the
Guaranteed Obligations has occurred and is continuing, either (i) enter
into or effectuate any transaction with any Affiliate which would reduce the
Net Worth of such Guarantor, including the payment of any dividend or
distribution to a shareholder, or the redemption, retirement, purchase or other
acquisition for consideration of any stock in such Guarantor or (ii) sell,
pledge, mortgage or otherwise transfer to any Person any of such Guarantor’s
assets, or any interest therein, except for fair value.


 


7.             Entire Agreement/Amendments.  This
instrument represents the entire agreement between the parties with respect to
the subject matter hereof.  The terms of
this Guaranty shall not be waived, altered, modified, amended, supplemented or
terminated in any manner whatsoever except by written instrument signed by
Lender and Guarantors.


 


8.             Successors and Assigns.  This
Guaranty shall be binding upon each Guarantor, and such Guarantor’s estate,
heirs, personal representatives, successors and assigns, may not be assigned or
delegated by any Guarantor and shall inure to the benefit of Lender and its
successors and assigns.


 


9.             Applicable Law and Consent to Jurisdiction.  This
Guaranty shall be governed by, and construed in accordance with, the
substantive laws of the State of New York. 
Each Guarantor irrevocably (a) agrees that any suit, action or
other legal proceeding arising out of or relating to this Guaranty may be
brought in a court of record in the City and County of New 


 


7

















 


York or in the Courts of
the United States of America located in the Southern District of New York,
(b) consents to the jurisdiction of each such court in any such suit,
action or proceeding and (c) waives any objection which it may have to the
laying of venue of any such suit, action or proceeding in any of such courts and
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum.  Each Guarantor
irrevocably consents to the service of any and all process in any such suit,
action or proceeding by service of copies of such process to such Guarantor at
its address provided in Section 14 hereof. 
Nothing in this Section 9, however, shall affect the right of
Lender to serve legal process in any other manner permitted by law or affect
the right of Lender to bring any suit, action or proceeding against any
Guarantor or its property in the courts of any other jurisdictions.


 


10.          Section Headings.  The
headings of the sections and paragraphs of this Guaranty have been inserted for
convenience of reference only and shall in no way define, modify, limit or
amplify any of the terms or provisions hereof.


 


11.          Severability.  Any
provision of this Guaranty which may be determined by any competent authority
to be prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.  To the extent permitted by applicable law,
each Guarantor hereby waives any provision of law which renders any provision
hereof prohibited or unenforceable in any respect.


 


12.          WAIVER OF TRIAL BY JURY.  EACH
GUARANTOR HEREBY WAIVES THE RIGHT OF TRIAL BY JURY IN ANY LITIGATION, ACTION OR
PROCEEDING ARISING HEREUNDER OR IN CONNECTION THEREWITH.


 


13.          Other Guaranties.  This
Guaranty is in addition to any and all other guaranties relating to the Debt or
any portion thereof.  Subject to the
provisions of Section 17 below, to the extent a Guarantor may become
liable under this Guaranty and one or more other guarantors may become liable
under the terms of any other guaranty made in favor of Lender with respect to
the Debt, Lender shall be entitled to exercise any and all of its remedies
against Guarantors under this Guaranty as well any and all of its remedies
against any one or more guarantors under such other guaranties jointly and
severally.


 


14.          Notices.   All
notices, consents, approvals and requests required or permitted hereunder (a “Notice”) shall
be given in writing and shall be effective for all purposes if either hand
delivered with receipt acknowledged, or by a nationally recognized overnight
delivery service (such as Federal Express), or by certified or registered
United States mail, return receipt requested, postage prepaid, or by facsimile
and confirmed by facsimile answer back, in each case addressed as follows (or
to such other address or Person as a party shall designate from time to time by
notice to the other party):  If to
Lender: Citigroup Global Markets Realty Corp., 388 Greenwich Street, Floor 11,
New York, New York 10013, Attention: Paul Schuler, Telecopier (212) 816-1299,
with a copy to: Sidley Austin Brown & Wood LLP, 10 South Dearborn
Street, Chicago, Illinois 60603, Attention: Charles E. Schrank, Esq.,
Telecopier: (312) 853-7036; if to Guarantor: 
15601 Dallas Parkway, Suite 600, Addison, Texas  75001, Attention: Chief Legal Counsel,
Telecopier: (214) 655-1610, and 15601 Dallas Parkway, Suite 600, 


 


8

















 


Addison, Texas  75001, Telecopier: (214) 655-1610.  A notice shall be deemed to have been
given:  in the case of hand delivery, at
the time of delivery; in the case of registered or certified mail, when
delivered or the first attempted delivery on a Business Day; or in the case of
overnight delivery, upon the first attempted delivery on a Business Day.


 


15.          Guarantor’s Receipt of Loan Documents.  Each
Guarantor by its execution hereof acknowledges receipt of true copies of all of
the Loan Documents, the terms and conditions of which are hereby incorporated
herein by reference.


 


16.          Interest; Expenses.


 


(a)           If Guarantors fail to pay all or any sums due hereunder upon demand by
Lender, the amount of such sums payable by Guarantors to Lender shall bear
interest from the date of demand until paid at the Default Rate in effect from
time to time.


 


(b)           Each Guarantor hereby agrees to pay all costs, charges and expenses,
including  reasonable attorneys’ fees and
disbursements, that may be incurred by Lender in enforcing the covenants,
agreements, obligations and liabilities of Guarantors under this Guaranty.


 


17.          Limitation on Liability. 
Notwithstanding anything to the contrary contained herein or in any
other Loan Document, it is expressly understood and agreed that no Guarantor
hereunder shall be liable for any Recourse Liability Guaranteed Obligation or
any Springing Recourse Guaranteed Obligation, which in either case is the
obligation of Borrower (pursuant to Section 10.1 of the Loan Agreement)
other than BEHRINGER HARVARD PRATT H, LLC.


 


18.          Joint and Several Obligations.  Each
Guarantor shall have joint and several liability for the obligations of
Guarantors hereunder.


 


19.          Counterparts. 
This Guaranty may
be executed in any number of counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together constitute one
and the same instrument.


 


9

















 


IN WITNESS WHEREOF, each Guarantor has
executed this Guaranty as of the date first above written.


 


	
   

  	
  BEHRINGER
  HARVARD HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Name:
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Title:
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/
  Robert Behringer

  
	
   

  	
  ROBERT
  BEHRINGER, individually

  



 

















 


Schedule 1


 


Initial TIC Borrowers


 


TIC
Pratt 1, LLC


 


TIC
Pratt 2, LLC


 


TIC
Pratt 4, LLC


 


TIC
Pratt 5, LLC


 


TIC
Pratt 6, LLC


 


TIC
Pratt 8, LLC


 


TIC
Pratt 9, LLC


 


TIC
Pratt 10, LLC


 


TIC
Pratt 11, LLC


 


TIC
Pratt 13, LLC


 


TIC
Pratt 15, LLC


 


TIC
Pratt 16, LLC


 


TIC
Pratt 17, LLC


 


TIC
Pratt 18, LLC


 


TIC
Pratt 19, LLC


 


TIC
Pratt 23, LLC


 


TIC
Pratt 24, LLC


 


TIC
Pratt 25, LLC


 
















 


INDEMNITY AGREEMENT - BH


 


INDEMNITY AGREEMENT
(the “Agreement”) made as
of the 1st day of October, 2004 by BEHRINGER
HARVARD TRAVIS TOWER S LP, a Delaware limited partnership and BEHRINGER HARVARD TRAVIS TOWER H LP, a Delaware limited
partnership (together, “Initial Borrower”),
each having its principal place of business c/o Behringer Harvard Funds, 15601
Dallas Parkway, Suite 600, Addison, Texas 75001, BEHRINGER HARVARD HOLDINGS, LLC, a Delaware limited liability company, having
an address c/o Behringer Harvard Funds, 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001 (“Principal 2”),
and ROBERT M. BEHRINGER, having an
address c/o Behringer Harvard Funds, 15601 Dallas Parkway, Suite 600,
Addison, Texas 75001 (“Principal 1”;
together with Principal 2, “Principal”;
Principal and Borrower collectively, “Indemnitor”),
in favor of BEAR STEARNS COMMERCIAL MORTGAGE, INC.,
a New  York corporation, having an address at 383 Madison Avenue, New
 York, New  York  10179 (“Lender”).


 


RECITALS:


 


A.            Lender is prepared to make a loan (the “Loan”) to Initial Borrowers pursuant to
that certain Loan Agreement dated October 1, 2004 (the “Loan Agreement”), which loan is
evidenced by that certain promissory note of even date herewith in the initial
principal amount of $37,750,000.00 made by Initial Borrower to Lender (collectively,
the “Note”) and secured by,
among other things, the Mortgage which encumbers the Property.  Capitalized terms not defined herein shall
have the meaning attributed to such term in the Loan Agreement.


 


B.            Lender is unwilling to make the Loan unless Initial Borrower and
Principal agree to provide the indemnification, representations and warranties
and other matters described in this Agreement for the benefit of Lender.


 


C.            Each Principal has a direct or indirect ownership interest in
Initial Borrower and thus will derive substantial benefit from the Loan.
Initial Borrower and Principal enter into this Agreement to induce Lender to
make the Loan.


 


D.            Initial Borrower intends to transfer, pursuant to Section  5.2.13
of the Loan Agreement, some or all of its ownership interest in the Property to
one or more tenants in common, each of whom will assume the Loan on a joint and
several basis as set forth in the Loan Documents.  Initial Borrower and/or any such tenants in
common that assume the Loan hereinafter referred to collectively as the “Borrower.”


 


AGREEMENT


 


NOW
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Indemnitor
hereby represents, warrants, covenants and agrees for the benefit of Lender as
follows:


 


1.             Indemnification.  Indemnitor covenants and
agrees at its sole cost and expense, to protect, defend, indemnify, release and
hold Lender harmless from and against any and all Losses (defined below)
imposed upon or incurred by or asserted against Lender and directly or 


 

















 


indirectly
arising out of or in any way relating to any one or more of the following: (i)  fraud
or intentional misrepresentation by Initial Borrowers or any affiliate of Initial
Borrowers in connection with the Loan; (ii)  the removal or disposal
of any portion of the Property after an Event of Default by Initial Borrowers
or any affiliate; (iii)  the failure of Initial Borrowers to obtain
Lender’s prior written consent to any subordinate financing or other voluntary
lien encumbering the Property that is placed on the Property by Initial
Borrowers; (iv)  the failure of Initial Borrower to obtain Lender’s
prior written consent to any assignment, transfer, or conveyance of the
Property or any portion thereof by Initial Borrowers as required by the Loan
Agreement; (v)  the breach by Initial Borrowers of any
representation, warranty, covenant or indemnification provision in the Loan
Agreement or the Mortgage concerning environmental laws, hazardous substances
and asbestos and any indemnification of Lender with respect thereto in either
document; (vi)  the filing by Initial Borrower of any action for
partition of the Property; (vii) any election by Initial Borrower to
terminate or not to renew the Property Management Agreement in a manner not
permitted under the Loan Agreement; (viii) the gross negligence or willful
misconduct of Initial Borrowers; (ix) the misapplication or conversion by
Initial Borrower of (A)  any insurance proceeds paid by reason of any
loss, damage or destruction to the Property, (B)  any awards or other
amounts received in connection with the condemnation of all or a portion of the
Property, or (C)  any Rents following an Event of Default.  As used herein, the term “Losses”
includes any and all claims, suits, liabilities, actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, punitive damages, foreseeable and unforeseeable consequential
damages, of whatever kind or nature (including but not limited to reasonable
attorneys’ fees and other costs of defense).


 


2.             Guaranty.  (a)  Principal
absolutely and unconditionally guarantees to Lender the prompt and full payment
of the Debt (as defined in the Loan Agreement) in the event that (A) Initial
Borrowers file a voluntary petition under the Bankruptcy Code or any other
Federal or state bankruptcy or insolvency law, or (B)  an involuntary
case is commenced against Initial Borrowers under the Bankruptcy Code or any
other Federal or state bankruptcy or insolvency law with the collusion of
Initial Borrowers or any of their Affiliates.


 


(b)           This
is a guaranty of payment and not of collection. 
The obligations of Principal hereunder are and shall be absolute under
any and all circumstances, without regard to the validity, regularity or
enforceability of the Note, the Loan Agreement, the Mortgage or the other Loan
Documents.  This Agreement shall remain
in full force and effect as to any modification, extension or renewal of the
Note, the Loan Agreement, the Mortgage or any of the other Loan Documents, and
notwithstanding any release or forbearance granted by Lender with respect
thereto, all of which may be made, done or suffered without notice to or
further consent of Principal.


 


3.             Unimpaired
Liability.  The liability of Indemnitor under this
Agreement shall in no way be limited or impaired by, and Indemnitor hereby
consents to and agrees to be bound by, any amendment or modification of the
provisions of the Note, the Loan Agreement, the Mortgage or any of the other
Loan Documents.  In addition, the
liability of Indemnitor under this Agreement shall in no way be limited or
impaired by (i)  any extensions of time for performance required by
the Note, the Loan Agreement, the Mortgage or any of the other Loan Documents, 


 

















 


(ii)  any
sale or transfer of all or part of the Property, (iii)  any
exculpatory provision in the Note, the Loan Agreement, the Mortgage, or any of
the other Loan Documents limiting Lender’s recourse to the Property or to any
other security for the Note, or limiting Lender’s rights to a deficiency
judgment against Indemnitor, (iv)  the accuracy or inaccuracy of the
representations and warranties made by Indemnitor under the Note, the Loan
Agreement, the Mortgage or any of the other Loan Documents or herein, (v)  the
release of Indemnitor or any other person from performance or observance of any
of the agreements, covenants, terms or condition contained in the Loan
Agreement, the Mortgage, the Note or the other Loan Documents by operation of
law, Lender’s voluntary act, or otherwise, (vi)  the release or
substitution in whole or in part of any security for the Note, or (vii)  Lender’s
failure to record the Loan Agreement, the Mortgage or file any UCC financing
statements (or Lender’s improper recording or filing of any thereof) or to
otherwise perfect, protect, secure or insure any security interest or lien
given as security for the Note; and, in any such case, whether with or without
notice to Indemnitors and with or without consideration.


 


4.             Enforcement.  Lender may enforce the
obligations of Indemnitor under this Agreement without first resorting to or
exhausting any security or collateral or without first having recourse to the
Note, the Loan Agreement, the Mortgage, or any other Loan Documents or any of
the Property, through foreclosure proceedings or otherwise; provided, however,
that nothing herein shall inhibit or prevent Lender from suing on the Note,
foreclosing, or exercising any power of sale under the Loan Agreement, the
Mortgage, or exercising any other rights and remedies thereunder or under the
Loan Agreement.  This Agreement is not
collateral or security for the debt of Indemnitor pursuant to the Loan, unless
Lender expressly elects in writing to make this Agreement additional collateral
or security for the debt of Indemnitor pursuant to the Loan, which Lender is
entitled to do in its sole and absolute discretion.  It is not necessary for an Event of Default
to have occurred for Lender to exercise its rights pursuant to this
Agreement.  Notwithstanding any provision
of the Note, the Loan Agreement, the Mortgage, or any of the other Loan Documents,
the obligations pursuant to this Agreement are exceptions to any non-recourse
or exculpation provision contained therein. 
Indemnitor is fully and personally liable for such obligations, and its
liability is not limited to the original or amortized principal balance of the
Loan or the value of the Property.


 


5.             Survival.  Subject to Section  18
below, the obligations and liabilities of Indemnitor under this Indemnity shall
fully survive indefinitely notwithstanding any termination, satisfaction, assignment,
entry of a judgment of foreclosure, exercise of any power of sale, or delivery
of a deed in lieu of foreclosure of the Mortgage.


 


6.             Interest.  Any amounts payable to
any Lender under this Agreement shall become immediately due and payable on demand
and, if not paid within thirty (30) days of such demand therefor, shall bear
interest at a per annum rate equal to the lesser of (a)  5% plus the
Interest Rate or (b)  the maximum interest rate which Indemnitor may
by law pay or Lender may charge and collect, from the date payment was due.


 


7.             Waivers.  (a)  Indemnitor
hereby waives (i)  any right or claim of right to cause a marshalling
of any Indemnitor’s assets or to cause Lender to proceed against any of the
security for the Loan before proceeding under this Agreement against
Indemnitor; (ii)  and relinquishes 


 

















 


all
rights and remedies accorded by applicable law to Indemnitor, except any rights
of subrogation which Indemnitor may have, provided that the indemnity provided
for hereunder shall neither be contingent upon the existence of any such rights
of subrogation nor subject to any claims or defenses whatsoever which may be
asserted in connection with the enforcement or attempted enforcement of such
subrogation rights including, without limitation, any claim that such
subrogation rights were abrogated by any acts of Lender; (iii)  the
right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against or by Lender; (iv)  notice
of acceptance hereof and of any action taken or omitted in reliance hereon; (v)  presentment
for payment, demand of payment, protest or notice of nonpayment or failure to
perform or observe, or other proof, or notice or demand; and (vi)  all
homestead exemption rights against the obligations hereunder and the benefits
of any statutes of limitations or repose; and (vii)  any rights to
require Lender to proceed against an Indemnitor, or to require Lender to pursue
any other remedy or enforce any other right. 
Notwithstanding anything to the contrary contained herein, Indemnitor
hereby agrees to postpone the exercise of any rights of subrogation with
respect to any collateral securing the Loan until the Loan shall have been paid
in full.


 


(b)           INDEMNITOR
AND LENDER HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, THE RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM, WHETHER IN CONTRACT,
TORT OR OTHERWISE, RELATING DIRECTLY OR INDIRECTLY TO THE LOAN, THE APPLICATION
FOR THE LOAN, THE COMMITMENT FOR THE LOAN, THE LOAN AGREEMENT, THE MORTGAGE,
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY ACTS OR OMISSIONS OF
ANY LENDER IN CONNECTION THEREWITH.


 


(c)           Indemnitor
hereby waives and agrees not to assert or take advantage of any defense based
upon failure of Lender to commence an action against Borrower.  In addition, Indemnitor expressly waives
all rights it may have now or in the future under any statute, or at common
law, or at law or in equity, or otherwise, to compel Lender to proceed in
respect of the obligations guaranteed hereunder against Borrower, or any other
party or against any security for the payment of the obligations guaranteed
hereunder before proceeding against, or as a condition to proceeding against
Indemnitor.  It is agreed between
Indemnitor and Lender that the foregoing waivers are of the essence of this
transaction and that, but for this Agreement and such waivers, Lender would
decline to enter into the loan evidenced and secured by the Loan Documents.


 


8.             Indemnitor’s
Representations and Warranties.  Indemnitor represents and warrants that:


 


(a)           if
Indemnitor is a corporation, partnership or limited liability company, it has
the full corporate/partnership/limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;
the execution, delivery and performance of this Agreement by Indemnitor has
been duly and validly authorized; and all requisite
corporate/partnership/limited liability company action has been taken by Indemnitor
to make this Agreement valid and binding upon Indemnitor, enforceable in
accordance with its terms;


 

















 


(b)           if
Indemnitor is an individual, he/she is acting in an individual capacity and has
full power and authority to make this Agreement valid and binding upon
Indemnitor, enforceable in accordance with its terms;


 


(c)           if
Indemnitor is a corporation, partnership, limited liability company or trust
its execution of, and compliance with, this Agreement is in the ordinary course
of business of that Indemnitor and will not result in the breach of any term or
provision of the charter, by-laws, partnership or trust agreement, articles of
organization, operating agreement, limited liability company agreement, or
other governing instrument of that Indemnitor or result in the breach of any
term or provision of, or conflict with or constitute a default under or result
in the acceleration of any obligation under any agreement, indenture or loan or
credit agreement or other instrument to which the Indemnitor or the Property
are subject, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Indemnitor or the Property are subject;


 


(d)           if
Indemnitor is an individual, his/her execution of, and compliance with, this
Agreement will not result in the breach of any term or provision of, or
conflict with or constitute a default under or result in the acceleration of
any obligation under any agreement, indenture or loan or credit agreement or
other instrument to which Indemnitor or the Property are subject, or result in
the violation of any law, rule, regulation, order, judgment or decree to which
the Indemnitor or the Property are subject;


 


(e)           to
the Indemnitor’s knowledge, there is no action, suit, proceeding or
investigation pending or threatened against it which, either in any one
instance or in the aggregate, may result in any material adverse change in the
business, operations, financial condition, properties or assets of Indemnitor,
or in any material impairment of the right or ability of Indemnitor to carry on
its business substantially as now conducted, or in any material liability on
the part of Indemnitor, or which would draw into question the validity of this
Agreement or of any action taken or to be taken in connection with the
obligations of Indemnitor contemplated herein, or which would be likely to
impair materially the ability of Indemnitor to perform under the terms of this
Agreement;


 


(f)            it
does not believe, nor does it have any reason or cause to believe, that it cannot
perform each and every covenant contained in this Agreement;


 


(g)           no
approval, authorization, order, license or consent of, or registration or
filing with, any governmental authority or other person, and no approval,
authorization or consent of any other party is required in connection with this
Agreement;


 


(h)           this
Agreement constitutes a valid, legal and binding obligation of Indemnitor,
enforceable against it in accordance with the terms hereof; and


 


(i)            Indemnitor
has filed all federal, state, county, municipal, and city income and other tax
returns required to have been filed by it and has paid all taxes and related
liabilities which have become due pursuant to such returns or pursuant to any
assessments received by it; 


 

















 


Indemnitor
does not know of any basis for any additional assessment in respect of any such
taxes and related liabilities for prior years.


 


9.             No
Waiver. 
No delay by any Indemnified Party in exercising any right, power or
privilege under this Agreement shall operate as a waiver of any such privilege,
power or right.


 


10.           Transfer
of Loan. 
(a)  Lender may, at any time, sell, transfer or assign the Note,
the Mortgage, this Agreement and the other Loan Documents, and any or all
servicing rights with respect thereto, or grant participations therein or issue
mortgage pass-through certificates or other securities evidencing a beneficial
interest in a rated or unrated public offering or private placement (the “Securities”).  Lender may forward to each purchaser,
transferee, assignee, servicer, participant or investor in such Securities or
any credit rating agency rating such Securities (the foregoing entities
hereinafter collectively referred to as the “Investor”) and each prospective Investor, all documents
and information (including financial information) but not limited to, which
Lender now has or may hereafter acquire relating to Indemnitor and the
Property, whether furnished by Indemnitor, any guarantor, or otherwise, as
Lender determines necessary or desirable.


 


(b)           Upon
any transfer or proposed transfer contemplated above and by the Mortgage, at
Lender’s request, Indemnitor shall provide an estoppel certificate to the
Investor or any prospective Investor in such form, substance and detail as
Lender, such Investor or prospective Investor may reasonably require.


 


11.           Notices.  All notices or other
written communications hereunder shall be given in accordance with Section  10.6
of the Loan Agreement, provided that notices to Indemnitor shall be addressed
as set forth on the first page hereof.


 


12.           Submission
to Jurisdiction.  With respect to any claim or action arising
hereunder, Indemnitor (a)  irrevocably submits to the
nonexclusive jurisdiction of the courts of the State of New  York and the
United States District Court for the Southern District of New  York, and
appellate courts from any thereof, and (b)  irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Agreement brought in
any such court, and (c)  irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.


 


13.           No
Third-party Beneficiary.  The terms of this Agreement are for the sole
and exclusive protection and use of Lender. 
No party shall be a third-party beneficiary hereunder, and no provision
hereof shall operate or inure to the use and benefit of any such third party.


 


14.           Duplicate
Originals; Counterparts.  This Agreement may be executed in any number
of duplicate originals and each duplicate original shall be deemed to be an
original.  This Agreement may be executed
in several counterparts, each of which counterparts shall be deemed an original
instrument and all of which together shall constitute a single Agreement.  The failure of any party hereto to execute
this Agreement, or any counterpart hereof, shall not relieve the other
signatories from their obligations hereunder.


 

















 


15.           No
Oral Change.  This Agreement, and any provisions hereof,
may not be modified, amended, waived, extended, changed, discharged or
terminated orally or by any act or failure to act on the part of any Indemnitor
or Lender, but only by an agreement in writing signed by the party against whom
enforcement of any modification, amendment, waiver, extension, change,
discharge or termination is sought.


 


16.           Headings, etc.  The headings and captions
of various paragraphs  of this Agreement are for convenience of reference
only and are not to be construed as defining or limiting, in any way, the scope
or intent of the provisions hereof.


 


17.           Number
and Gender/Successors and Assigns.  All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as
the identity of the person or persons referred to may require.  Without limiting the effect of specific
references in any provision of this Agreement, the term “Indemnitor” shall be deemed to refer to
each and every person or entity comprising an Indemnitor from time to time, as
the sense of a particular provision may require, and to include the heirs,
executors, administrators, legal representatives, successors and assigns of
Indemnitor, all of whom shall be bound by the provisions of this Agreement,
provided that no obligation of any Indemnitor may be assigned except with the
written consent of Lender.  Each
reference herein to Lender shall be deemed to include its successors and
assigns.  This Agreement shall inure to
the benefit of Lender and its respective successors and assigns forever.


 


18.           Joint
and Several Liability.  If Indemnitor consists of more than one
person or entity, the obligations and liabilities of each such person hereunder
are joint and several.


 


19.           Release
of Liability.  Any one or more parties liable upon or in
respect of this Agreement may be released without affecting the liability of
any party not so released. In addition, if either Initial Borrower, with Lender’s
consent, no longer owns any interest in the Property, Indemnitor shall
have no further liability for acts or omissions first arising after the date on
which Initial Borrower conveyed all of its right, title and interest in the
Property to an unaffiliated third party transferee, provided, however, Indemnitor
shall remain liable under this Agreement with respect to acts or omissions
first arising on or prior to such date. Initial Borrowers shall be released
upon a transfer of the entire Property approved by the Lender and BH-S shall be
released upon sale of its last remaining undivided interest in the Property.


 


20.           Rights
Cumulative.  The rights and remedies herein provided are
cumulative and not exclusive of any rights or remedies which Lender has under
the Note, the Mortgage, or the Other Security Documents or would otherwise have
at law or in equity.


 


21.           Inapplicable
Provisions.  If any term, condition or covenant of this
Agreement shall be held to be invalid, illegal or unenforceable in any respect,
this Agreement shall be construed without such provision.


 


22.           Governing
Law. 
(a)  THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, THE
LOAN WAS MADE BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND
THE PROCEEDS OF THE LOAN 


 

















 


DELIVERED
PURSUANT TO THE LOAN AGREEMENT WERE DISBURSED FROM 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, THE NOTE AND THE OTHER LOAN DOCUMENTS
AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER 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
CONFLICTS OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED STATES OF AMERICA,
EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION, PERFECTION, AND
ENFORCEMENT OF THE LIEN AND SECURITY INTEREST CREATED PURSUANT TO THE OTHER
LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF THE
STATE IN WHICH THE PROPERTY IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN
DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER.  TO THE FULLEST EXTENT PERMITTED BY LAW, INDEMNITOR
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW
OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT, THE NOTE AND THE OTHER LOAN
DOCUMENTS, AND THIS AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS 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.


 


(b)  ANY LEGAL SUIT, ACTION OR
PROCEEDING AGAINST LENDER OR INDEMNITOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE OTHER LOAN DOCUMENTS 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
INDEMNITOR 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 INDEMNITOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT
IN ANY SUIT, ACTION OR PROCEEDING. 
INDEMNITOR DOES HEREBY DESIGNATE AND APPOINT:


 


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 INDEMNITOR IN THE MANNER PROVIDED HEREIN
SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON INDEMNITOR
IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK.  INDEMNITOR (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.


 


23.           Miscellaneous.  Wherever pursuant to this
Agreement (i)  Lender exercises any right given to it to approve or
disapprove, (ii)  any arrangement or term is to be satisfactory to
Lender, or (iii)  any other decision or determination is to be made
by Lender, the decision of Lender to approve or disapprove, all decisions that
arrangements or terms are satisfactory or not satisfactory and all other
decisions and determinations made by Lender, shall be in the sole and absolute
discretion of Lender and shall be final and conclusive, except as may be
otherwise expressly and specifically provided herein.


 

















 


IN
WITNESS WHEREOF, this Agreement has been executed by Indemnitor and is
effective as of the day and year first above written.


 


	
   

  	
  BEHRINGER HARVARD TRAVIS TOWER S LP, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard Travis Tower S GP, LLC, a Delaware limited
  liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J. Reihsen, III, Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD TRAVIS TOWER H LP, a Delaware limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer Harvard Travis Tower H GP, LLC, a Delaware limited
  liability company, its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald J. Reihsen, III

  
	
   

  	
   

  	
   

  	
  Gerald J. Reihsen, III, Secretary

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD HOLDINGS, LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
   

  	
   

  	
  Gerald
  J. Reihsen, III

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Robert M .Behringer

  
	
   

  	
   

  	
  ROBERT M. BEHRINGER, Individually