Exhibit 10.5


Loan No. V  59941


GUARANTY
AGREEMENT


THIS GUARANTY AGREEMENT (this
“Guaranty”) is executed as of October 30,
2006, by BEHRINGER HARVARD REIT I, INC., a Maryland
corporation, having an address c/o Behringer Harvard Funds, 15601 Dallas
Parkway, Suite 600, Addison, Texas 75001 (whether one or more collectively
referred to as “Guarantor”), for the benefit of JPMORGAN CHASE BANK, N.A., a banking association chartered under the
laws of the United States of America, having an office at 270 Park Avenue,
New York, New York 10017 (“Lender”).


W I T N E S S E T H:


WHEREAS,
pursuant to that certain Promissory Note, dated of even date herewith, executed
by BEHRINGER HARVARD THREE PARKWAY, LLC, a
Delaware limited liability company (“Borrower”), and
payable to the order of Lender in the original principal amount of Sixty-Seven
Million One Hundred Twenty-Five Thousand and No/100 Dollars ($67,125,000) (as
the same may hereafter be amended, restated, renewed, supplemented, replaced,
extended or otherwise modified from time to time, the “Note”),
Borrower has become indebted, and may from time to time be further indebted, to
Lender with respect to a loan (the “Loan”) which is
secured by the lien and security interest of that certain Mortgage and Security
Agreement, dated as of the date hereof, made by Borrower for the benefit of
Lender (as the same may hereafter be amended, restated, renewed, supplemented,
replaced, extended or otherwise modified from time to time, the “Security Instrument”), and is further evidenced by that
certain Loan Agreement, of even date herewith between Borrower and Lender (as
the same may hereinafter be amended, modified, restated, renewed or replaced
the “Loan Agreement”) and further evidenced,
secured or governed by such other instruments and documents executed in
connection with the Loan (together with the Note, the Loan Agreement and the
Security Instrument are hereinafter collectively referred to as the “Loan Documents”); and


WHEREAS, Lender
is not willing to make the Loan, or otherwise extend credit, to Borrower unless
Guarantor unconditionally guarantees payment and performance to Lender of the
Guaranteed Obligations (as herein defined); and


WHEREAS,
Guarantor is the owner of a direct or indirect interest in Borrower, and
Guarantor will directly benefit from Lender’s making the Loan to Borrower.


NOW, THEREFORE,
as an inducement to Lender to make the Loan to Borrower, and to extend such
additional credit as Lender may from time to time agree to extend under the
Loan Documents, and for other good and valuable consideration, the receipt and
legal sufficiency of which are hereby acknowledged, the parties do hereby agree
as follows:









 



ARTICLE
I



NATURE AND SCOPE OF GUARANTY


Section 1.1            GUARANTY OF OBLIGATION.  Guarantor hereby irrevocably and unconditionally
guarantees to Lender and its successors and assigns the payment and performance
of the Guaranteed Obligations as and when the same shall be due and payable,
whether by lapse of time, by acceleration of maturity or otherwise.  Guarantor hereby irrevocably and
unconditionally covenants and agrees that it is liable for the Guaranteed
Obligations as a primary obligor.


Section 1.2            Definition
of Guaranteed Obligations. 
As used herein, the term “Guaranteed Obligations”
shall (i) mean each of the obligations of Borrower under the Environmental
Indemnity, including without limitation the indemnification provisions
contained therein, and (ii) be deemed to include, and Guarantor shall also be
liable for, and shall indemnify, defend and hold Lender harmless from and
against, any and all Losses (as hereinafter defined) incurred or suffered by
Lender and arising out of or in connection with the matters listed below:


(a)           the misapplication or misappropriation of Rents;


(b)           the misapplication or misappropriation of Insurance
Proceeds or Awards;


(c)           Borrower’s failure to return or to reimburse Lender for
all Personal Property (other than Personal Property not material to the
operation or value of the affected Individual Property) taken from the Property
by or on behalf of Borrower and not replaced with Personal Property of the same
utility and of the same or greater value;


(d)           any act of actual waste or arson by Borrower, any
principal, affiliate, general partner or member thereof or by Guarantor;


(e)           any fees or commissions paid by Borrower to any principal,
affiliate, general partner or member of Borrower or any Guarantor in violation
of the terms of this Guaranty, the other Loan Documents;


(f)            Borrower’s failure to comply with the provisions of Section
9.4 of the Security Instrument;


(g)           any fraud, willful misconduct or intentional material
misrepresentation by Borrower, Principal, Guarantor or any of their respective
Affiliates in connection with the Loan; or


(h)           any breach or default of any material provision of Section
4.1.30 of the Loan Agreement (other than breaches of the requirements set
forth in clauses (xii) or (xxiii) of the definition of Special Purpose Entity).


In addition, the
Guaranteed Obligations shall also include the unpaid balance of the Debt in the
event of: (i) a voluntary breach or default under Section 5.2.10 of
the Loan Agreement, (ii) Borrower or Principal filing a voluntary petition
under the Bankruptcy Code or 









 



any other Federal or
state bankruptcy or insolvency law; (iii) Borrower or Principal filing an
answer consenting to or otherwise acquiescing in or joining in any involuntary
petition filed against it, by any other Person under the Bankruptcy Code or any
other Federal or state bankruptcy or insolvency law, or soliciting or causing to
be solicited petitioning creditors for any involuntary petition from any
Person; (iv) Borrower or Principal consenting to or acquiescing in or
joining in an application for the appointment of a custodian, receiver,
trustee, or examiner for Borrower, Principal or any portion of the Property; or
(v) Borrower or Principal making an assignment for the benefit of
creditors.


Section 1.3            Nature
of Guaranty.  This
Guaranty is an irrevocable, absolute, continuing guaranty of payment and
performance and not a guaranty of collection. 
This Guaranty may not be revoked by Guarantor and shall continue to be
effective with respect to any Guaranteed Obligations arising or created after
any attempted revocation by Guarantor and after (if Guarantor is a natural
person) Guarantor’s death (in which event this Guaranty shall be binding upon
Guarantor’s estate and Guarantor’s legal representatives and heirs).  The fact that at any time or from time to
time the Guaranteed Obligations may be increased or reduced shall not release or
discharge the obligation of Guarantor to Lender with respect to the Guaranteed
Obligations.  This Guaranty may be
enforced by Lender and any subsequent holder of the Note and shall not be
discharged by the assignment or negotiation of all or part of the Note.


Section 1.4            Guaranteed
Obligations Not Reduced by Offset.  The Guaranteed Obligations and the
liabilities and obligations of Guarantor to Lender hereunder, shall not be
reduced, discharged or released because or by reason of any existing or future
offset, claim or defense of Borrower, or any other party, against Lender or
against payment of the Guaranteed Obligations, whether such offset, claim or
defense arises in connection with the Guaranteed Obligations (or the
transactions creating the Guaranteed Obligations) or otherwise.


Section 1.5            Payment
By Guarantor.  If all or
any part of the Guaranteed Obligations shall not be punctually paid when due,
whether at demand, maturity, acceleration or otherwise, Guarantor shall,
immediately upon demand by Lender, and without presentment, protest, notice of
protest, notice of non-payment, notice of intention to accelerate the maturity,
notice of acceleration of the maturity, or any other notice whatsoever, pay in
lawful money of the United States of America, the amount due on the Guaranteed
Obligations to Lender at Lender’s address as set forth herein.  Such demand(s) may be made at any time
coincident with or after the time for payment of all or part of the Guaranteed
Obligations, and may be made from time to time with respect to the same or
different items of Guaranteed Obligations. 
Such demand shall be deemed made, given and received in accordance with
the notice provisions hereof.


Section 1.6            No
Duty To Pursue Others.  It
shall not be necessary for Lender (and Guarantor hereby waives any rights which
Guarantor may have to require Lender), in order to enforce the obligations of
Guarantor hereunder, first to (i) institute suit or exhaust its remedies
against Borrower or others liable on the Loan or the Guaranteed Obligations or
any other person, (ii) enforce Lender’s rights against any collateral
which shall ever have been given to secure the Loan, (iii) enforce Lender’s
rights against any other guarantors of the Guaranteed Obligations,
(iv) join Borrower or any others liable on the Guaranteed Obligations in
any action seeking to enforce this Guaranty, (v) exhaust any remedies
available to Lender against any collateral which shall ever have been given to
secure the Loan, or (vi) resort to any other means of obtaining 









 



payment of the Guaranteed Obligations. Lender shall
not be required to mitigate damages or take any other action to reduce, collect
or enforce the Guaranteed Obligations.


Section 1.7            Waivers.  Guarantor agrees to the provisions of the
Loan Documents, and hereby waives notice of (i) any loans or advances made
by Lender to Borrower, (ii) acceptance of this Guaranty, (iii) any
amendment or extension of the Note, the Security Instrument, the Loan Agreement
or of any other Loan Documents, (iv) the execution and delivery by
Borrower and Lender of any other loan or credit agreement or of Borrower’s
execution and delivery of any promissory notes or other documents arising under
the Loan Documents or in connection with the Property, (v) the occurrence
of any breach by Borrower or an Event of Default, (vi) Lender’s transfer
or disposition of the Guaranteed Obligations, or any part thereof,
(vii) sale or foreclosure (or posting or advertising for sale or
foreclosure) of any collateral for the Guaranteed Obligations,
(viii) protest, proof of non-payment or default by Borrower, or
(ix) any other action at any time taken or omitted by Lender, and,
generally, all demands and notices of every kind in connection with this
Guaranty, the Loan Documents, any documents or agreements evidencing, securing
or relating to any of the Guaranteed Obligations and the obligations hereby
guaranteed.


Section 1.8            Payment
of Expenses.  In the event
that Guarantor should breach or fail to timely perform any provisions of this
Guaranty, Guarantor shall, immediately upon demand by Lender, pay Lender all
costs and expenses (including court costs and attorneys’ fees) incurred by
Lender in the enforcement hereof or the preservation of Lender’s rights
hereunder.  The covenant contained in
this Section shall survive the payment and performance of the Guaranteed
Obligations.


Section 1.9            Effect
of Bankruptcy.  In the
event that, pursuant to any insolvency, bankruptcy, reorganization,
receivership or other debtor relief law, or any judgment, order or decision
thereunder, Lender must rescind or restore any payment, or any part thereof,
received by Lender in satisfaction of the Guaranteed Obligations, as set forth
herein, any prior release or discharge from the terms of this Guaranty given to
Guarantor by Lender shall be without effect, and this Guaranty shall remain in
full force and effect. It is the intention of Borrower and Guarantor that
Guarantor’s obligations hereunder shall not be discharged except by Guarantor’s
performance of such obligations and then only to the extent of such
performance.


Section 1.10         Waiver
of Subrogation, Reimbursement and Contribution.  Guarantor hereby unconditionally
and irrevocably waives, releases and abrogates any and all rights it may now or
hereafter have under any agreement, at law or in equity (including, without
limitation, any law subrogating the Guarantor to the rights of Lender), to
assert any claim against or seek contribution, indemnification or any other
form of reimbursement from Borrower or any other party liable for payment of
any or all of the Guaranteed Obligations for any payment made by Guarantor
under or in connection with this Guaranty or otherwise; provided, however, that
notwithstanding anything to the contrary contained herein, Guarantor shall have
and be entitled to all (a) all rights of subrogation otherwise provided by
applicable law in respect of any payment it may make or be obligated to make
under this Guaranty and (b) all claims it would have against Borrower or any
other party and to assert and enforce same, in each case on and after, but at
no time prior to, the date which is 91 days after the date on which all sums
owed to Lender under this Guaranty and the other the Loan Documents have been
paid in full.









 



Section 1.11         Borrower.  The term “Borrower” as
used herein shall include any new or successor corporation, association,
partnership (general or limited), limited liability company, joint venture,
trust or other individual or organization formed as a result of any merger,
reorganization, sale, transfer, devise, gift or bequest of Borrower or any
interest in Borrower.


ARTICLE
II



EVENTS AND CIRCUMSTANCES NOT REDUCING

OR DISCHARGING GUARANTOR’S OBLIGATIONS


Guarantor hereby consents
and agrees to each of the following, and agrees that Guarantor’s obligations
under this Guaranty shall not be released, diminished, impaired, reduced or
adversely affected by any of the following, and waives any common law,
equitable, statutory or other rights (including without limitation rights to
notice) which Guarantor might otherwise have as a result of or in connection
with any of the following:


Section 2.1            Modifications.  Any renewal, extension, increase,
modification, alteration or rearrangement of all or any part of the Guaranteed
Obligations, the Note, the Security Instrument, the Loan Agreement, the other
Loan Documents, or any other document, instrument, contract or understanding
between Borrower and Lender, or any other parties, pertaining to the Guaranteed
Obligations or any failure of Lender to notify Guarantor of any such action.


Section 2.2            Adjustment.  Any adjustment, indulgence, forbearance or
compromise that might be granted or given by Lender to Borrower or any other guarantor.


Section 2.3            Condition
of Borrower or Guarantor. 
The insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, disability, dissolution or lack of power of Borrower, Guarantor or
any other party at any time liable for the payment of all or part of the
Guaranteed Obligations; or any dissolution of Borrower or Guarantor, or any
sale, lease or transfer of any or all of the assets of Borrower or Guarantor,
or any changes in the shareholders, partners or members of Borrower or
Guarantor; or any reorganization of Borrower or Guarantor.


Section 2.4            Invalidity
of Guaranteed Obligations. 
The invalidity, illegality or unenforceability of all or any part of the
Guaranteed Obligations, or any document or agreement executed in connection
with the Guaranteed Obligations, for any reason whatsoever, including without
limitation the fact that (i) the Guaranteed Obligations, or any part
thereof, exceeds the amount permitted by law, (ii) the act of creating the
Guaranteed Obligations or any part thereof is ultra vires, (iii) the
officers or representatives executing the Note, the Security Instrument, the
Loan Agreement or the other Loan Documents or otherwise creating the Guaranteed
Obligations acted in excess of their authority, (iv) the Guaranteed
Obligations violate applicable usury laws, (v) the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement) which
render the Guaranteed Obligations wholly or partially uncollectible from
Borrower, (vi) the creation, performance or repayment of the Guaranteed
Obligations (or the execution, delivery and performance of any document or
instrument representing part of the Guaranteed Obligations or executed in
connection with the Guaranteed 









 



Obligations, or given to secure the repayment of the
Guaranteed Obligations) is illegal, uncollectible or unenforceable, or
(vii) the Note, the Security Instrument, the Loan Agreement or any of the
other Loan Documents have been forged or otherwise are irregular or not genuine
or authentic, it being agreed that Guarantor shall remain liable hereon
regardless of whether Borrower or any other person be found not liable on the
Guaranteed Obligations or any part thereof for any reason.


Section 2.5            Release
of Obligors.  Any full or
partial release of the liability of Borrower on the Guaranteed Obligations, or
any part thereof, or of any co-guarantors, or any other Person now or hereafter
liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed
Obligations, or any part thereof, it being recognized, acknowledged and agreed
by Guarantor that Guarantor may be required to pay the Guaranteed Obligations
in full without assistance or support of any other party, and Guarantor has not
been induced to enter into this Guaranty on the basis of a contemplation,
belief, understanding or agreement that other parties will be liable to pay or
perform the Guaranteed Obligations, or that Lender will look to other parties
to pay or perform the Guaranteed Obligations.


Section 2.6            Other
Collateral.  The taking or
accepting of any other security, collateral or guaranty, or other assurance of
payment, for all or any part of the Guaranteed Obligations.


Section 2.7            Release
of Collateral.  Any
release, surrender, exchange, subordination, deterioration, waste, loss or impairment
(including without limitation negligent, willful, unreasonable or unjustifiable
impairment) of any collateral, property or security at any time existing in
connection with, or assuring or securing payment of, all or any part of the
Guaranteed Obligations.


Section 2.8            Care
and Diligence.  The
failure of Lender or any other party to exercise diligence or reasonable care
in the preservation, protection, enforcement, sale or other handling or
treatment of all or any part of any collateral, property or security, including
but not limited to any neglect, delay, omission, failure or refusal of Lender
(i) to take or prosecute any action for the collection of any of the
Guaranteed Obligations or (ii) to foreclose, or initiate any action to
foreclose, or, once commenced, prosecute to completion any action to foreclose
upon any security therefor, or (iii) to take or prosecute any action in
connection with any instrument or agreement evidencing or securing all or any
part of the Guaranteed Obligations.


Section 2.9            Unenforceability.  The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created or
granted as security for the repayment of the Guaranteed Obligations, or any
part thereof, shall not be properly perfected or created, or shall prove to be
unenforceable or subordinate to any other security interest or lien, it being
recognized and agreed by Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations.


Section 2.10         Offset.  The Note, the Loan Agreement, the Guaranteed
Obligations and the liabilities and obligations of the Guarantor to Lender hereunder
shall not be 









 



reduced, discharged or released because of or by
reason of any existing or future right of offset, claim or defense of Borrower
against Lender, or any other party, or against payment of the Guaranteed
Obligations, whether such right of offset, claim or defense arises in
connection with the Guaranteed Obligations (or the transactions creating the
Guaranteed Obligations) or otherwise.


Section 2.11         Merger.  The reorganization, merger or consolidation
of Borrower into or with any other Person.


Section 2.12         Preference.  Any payment by Borrower to Lender is held to
constitute a preference under bankruptcy laws, or for any reason Lender is
required to refund such payment or pay such amount to Borrower or someone else.


Section 2.13         Other
Actions Taken or Omitted. 
Any other action taken or omitted to be taken with respect to the Loan
Documents, the Guaranteed Obligations, or the security and collateral therefor,
whether or not such action or omission prejudices Guarantor or increases the
likelihood that Guarantor will be required to pay the Guaranteed Obligations
pursuant to the terms hereof, it is the unambiguous and unequivocal intention
of Guarantor that Guarantor shall be obligated to pay the Guaranteed
Obligations when due, notwithstanding any occurrence, circumstance, event,
action, or omission whatsoever, whether contemplated or uncontemplated, and
whether or not otherwise or particularly described herein, which obligation
shall be deemed satisfied only upon the full and final payment and satisfaction
of the Guaranteed Obligations.


ARTICLE
III



REPRESENTATIONS AND WARRANTIES


To induce Lender to enter
into the Loan Documents and extend credit to Borrower, Guarantor represents and
warrants to Lender as follows:


Section 3.1            Benefit.  Guarantor is an affiliate of Borrower, is the
owner of a direct or indirect interest in Borrower, and has received, or will
receive, direct or indirect benefit from the making of this Guaranty with
respect to the Guaranteed Obligations.


Section 3.2            Familiarity
and Reliance.  Guarantor
is familiar with, and has independently reviewed books and records regarding,
the financial condition of the Borrower and is familiar with the value of any
and all collateral intended to be created as security for the payment of the Note
or Guaranteed Obligations; however, Guarantor is not relying on such financial
condition or the collateral as an inducement to enter into this Guaranty.


Section 3.3            No
Representation By Lender. 
Neither Lender nor any other party has made any representation, warranty
or statement to Guarantor in order to induce the Guarantor to execute this
Guaranty.


Section 3.4            Guarantor’s
Financial Condition.  As
of the date hereof, and after giving effect to this Guaranty and the contingent
obligation evidenced hereby, Guarantor is, and will be, solvent, and has and
will have assets which, fairly valued, exceed its obligations, 









 



liabilities (including contingent liabilities) and
debts, and has and will have property and assets sufficient to satisfy and
repay its obligations and liabilities as they become due.


Section 3.5            Legality.  The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereunder do not, and will not, contravene or conflict with any law,
statute or regulation whatsoever to which Guarantor is subject or constitute a
default (or an event which with notice or lapse of time or both would
constitute a default) under, or result in the breach of, any indenture,
mortgage, deed of trust, charge, lien, or any contract, agreement or other
instrument to which Guarantor is a party or which may be applicable to
Guarantor.  This Guaranty is a legal and
binding obligation of Guarantor and is enforceable in accordance with its
terms, except as limited by bankruptcy, insolvency or other laws of general
application relating to the enforcement of creditors’ rights.


Section 3.6            Litigation.  There are no actions, suits or proceedings at
law or in equity by or before any Governmental Authority or other agency now
pending or threatened against or affecting Guarantor which, if determined
adversely to Guarantor, could have a material adverse effect on its ability to
pay its obligations hereunder.


Section 3.7            Survival.
 All representations and
warranties made by Guarantor herein shall survive the execution hereof.


ARTICLE
IV



SUBORDINATION OF CERTAIN INDEBTEDNESS


Section 4.1            Subordination
of All Guarantor Claims. 
As used herein, the term “Guarantor Claims”
shall mean all debts and liabilities of Borrower to Guarantor, whether such
debts and liabilities now exist or are hereafter incurred or arise, or whether
the obligations of Borrower thereon be direct, contingent, primary, secondary,
several, joint and several, or otherwise, and irrespective of whether such
debts or liabilities be evidenced by note, contract, open account, or
otherwise, and irrespective of the person or persons in whose favor such debts
or liabilities may, at their inception, have been, or may hereafter be created,
or the manner in which they have been or may hereafter be acquired by
Guarantor.  The Guarantor Claims shall
include without limitation all rights and claims of Guarantor against Borrower
(arising as a result of subrogation or otherwise) as a result of Guarantor’s
payment of all or a portion of the Guaranteed Obligations.  Upon the occurrence and during the
continuance of an Event of Default, Guarantor shall not receive or collect,
directly or indirectly, from Borrower or any other party any amount upon the
Guarantor Claims.


Section 4.2            Claims
in Bankruptcy.  In the
event of receivership, bankruptcy, reorganization, arrangement, debtor’s
relief, or other insolvency proceedings involving Guarantor as debtor, Lender
shall have the right to prove its claim in any such proceeding so as to establish
its rights hereunder and receive directly from the receiver, trustee or other
court custodian dividends and payments which would otherwise be payable upon
Guarantor Claims.  Guarantor hereby
assigns such dividends and payments to Lender. 
Should Lender receive, for application against the Guaranteed
Obligations, any such dividend or payment which is otherwise payable to
Guarantor, and which, as between Borrower and Guarantor, shall constitute 









 



a credit against the Guarantor Claims, then upon
payment to Lender in full of the Guaranteed Obligations, Guarantor shall become
subrogated to the rights of Lender to the extent that such payments to Lender
on the Guarantor Claims have contributed toward the liquidation of the
Guaranteed Obligations, and such subrogation shall be with respect to that
proportion of the Guaranteed Obligations which would have been unpaid if Lender
had not received dividends or payments upon the Guarantor Claims.


Section 4.3            Payments
Held in Trust.  In the
event that, notwithstanding anything to the contrary in this Guaranty,
Guarantor should receive any funds, payment, claim or distribution which is
prohibited by this Guaranty, Guarantor agrees to hold in trust for Lender an
amount equal to the amount of all funds, payments, claims or distributions so
received, and Guarantor covenants promptly to pay the same to Lender.


Section 4.4            Liens
Subordinate.  Guarantor
agrees that any liens, security interests, judgment liens, charges or other
encumbrances upon Borrower’s assets securing payment of the Guarantor Claims
shall be and remain inferior and subordinate to any liens, security interests,
judgment liens, charges or other encumbrances upon Borrower’s assets securing
payment of the Guaranteed Obligations, regardless of whether such encumbrances
in favor of Guarantor or Lender presently exist or are hereafter created or
attach.  Without the prior written
consent of Lender, Guarantor shall not (i) exercise or enforce any
creditor’s right it may have against Borrower, or (ii) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceedings
(judicial or otherwise, including without limitation the commencement of, or
joinder in, any liquidation, bankruptcy, rearrangement, debtor’s relief or
insolvency proceeding) to enforce any liens, mortgage, deeds of trust, security
interests, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.


ARTICLE
V



MISCELLANEOUS


Section 5.1            Waiver.  No failure to exercise, and no delay in
exercising, on the part of Lender, any right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right.  The rights of Lender hereunder shall be in addition
to all other rights provided by law.  No
modification or waiver of any provision of this Guaranty, nor consent to
departure therefrom, shall be effective unless in writing and no such consent
or waiver shall extend beyond the particular case and purpose involved.  No notice or demand given in any case shall
constitute a waiver of the right to take other action in the same, similar or
other instances without such notice or demand.


Section 5.2            Notices.  All notices, consents, approvals and requests
required or permitted hereunder shall be given in writing and shall be
effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested or
(b) expedited prepaid delivery service, either commercial or United States
Postal Service, with proof of attempted delivery, and by telecopier (with
answer back acknowledged), addressed as follows (or at such other address and
Person as shall be designated from time to 









 



time by any party hereto, as the case may be, in a
written notice to the other parties hereto in the manner provided for in this
Section):


Guarantor:                                                                                        c/o
Behringer Harvard Funds

15601 Dallas Parkway, Suite 600

Addison, Texas 75001

Attention: Gerald J. Reihsen, III


with a copy to:                                                                 Luce,
Forward, Hamilton & Scripps LLP

600 West Broadway

Suite 2600

San Diego, CA 92101-3391

Attention: Darryl Steinhause, Esq.


Lender:                                                                                                      JPMorgan
Chase Bank, N.A.

c/o ARCap Servicing, Inc. 

5221 North O’Connor Blvd., Suite 600

Irving, Texas 75039

Attention:  Clyde F. Greenhouse


with a copy to:                                                                 NorthMarq
Capital Inc.


3500 American
Boulevard West, Suite 500


Bloomington,
Minnesota 55431


Attention: Karen Pribnow


with a copy to:                                                                 Kelley
Drye & Warren LLP

101 Park Avenue

New York, New York 10178

Attention:  Paul A. Keenan, Esq.


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 expedited prepaid delivery and telecopy, upon the first
attempted delivery on a Business Day.


Section 5.3            Governing
Law.  This Guaranty shall
be governed by and construed in accordance with the laws of the state in which
the Property is located (without regard to any conflict of laws or principles)
and the applicable laws of the United States of America.


Section 5.4            Invalid
Provisions.  If any
provision of this Guaranty is held to be illegal, invalid, or unenforceable
under present or future laws effective during the term of this Guaranty, such
provision shall be fully severable and this Guaranty shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Guaranty, and the remaining provisions of this Guaranty
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance from this Guaranty,
unless such continued effectiveness of this Guaranty, as modified, would be
contrary to the basic understandings and intentions of the parties as expressed
herein.









 



Section 5.5            Amendments.  This Guaranty may be amended only by an
instrument in writing executed by the party or an authorized representative of
the party against whom such amendment is sought to be enforced.


Section 5.6            Parties
Bound; Assignment; Joint and Several.  This Guaranty shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, assigns
and legal representatives; provided, however, that Guarantor may not, without
the prior written consent of Lender, assign any of its rights, powers, duties
or obligations hereunder.  If Guarantor
consists of more than one person or party, the obligations and liabilities of
each such person or party shall be joint and several.


Section 5.7            Headings.  Section headings are for convenience of
reference only and shall in no way affect the interpretation of this Guaranty.


Section 5.8            Recitals.  The recital and introductory paragraphs
hereof are a part hereof, form a basis for this Guaranty and shall be
considered prima facie evidence of the facts and documents referred to therein.


Section 5.9            Counterparts.  To facilitate execution, this Guaranty may be
executed in as many counterparts as may be convenient or required.  It shall not be necessary that the signature
of, or on behalf of, each party, or that the signature of all persons required
to bind any party, appear on each counterpart. 
All counterparts shall collectively constitute a single instrument.  It shall not be necessary in making proof of
this Guaranty to produce or account for more than a single counterpart
containing the respective signatures of, or on behalf of, each of the parties
hereto. Any signature page to any counterpart may be detached from such counterpart
without impairing the legal effect of the signatures thereon and thereafter
attached to another counterpart identical thereto except having attached to it
additional signature pages.


Section 5.10         Rights
and Remedies.  If
Guarantor becomes liable for any indebtedness owing by Borrower to Lender, by
endorsement or otherwise, other than under this Guaranty, such liability shall
not be in any manner impaired or affected hereby and the rights of Lender
hereunder shall be cumulative of any and all other rights that Lender may ever
have against Guarantor.  The exercise by
Lender of any right or remedy hereunder or under any other instrument, or at
law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.


Section 5.11         Other
Defined Terms.  Any
capitalized term utilized herein shall have the meaning as specified in the
Loan Agreement, unless such term is otherwise specifically defined herein.


Section 5.12         Entirety.  THIS GUARANTY EMBODIES THE FINAL, ENTIRE
AGREEMENT OF GUARANTOR AND LENDER WITH RESPECT TO GUARANTOR’S GUARANTY OF THE
GUARANTEED OBLIGATIONS AND SUPERSEDES ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF.  THIS
GUARANTY IS INTENDED BY GUARANTOR AND LENDER AS A FINAL AND COMPLETE 









 



EXPRESSION OF THE TERMS OF THE
GUARANTY, AND NO COURSE OF DEALING BETWEEN GUARANTOR AND LENDER, NO COURSE OF
PERFORMANCE, NO TRADE PRACTICES, AND NO EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OR OTHER EXTRINSIC EVIDENCE OF ANY
NATURE (OTHER THAN AN AMENDMENT EXECUTED IN ACCORDANCE WITH THE PROVISIONS
HEREOF OR A WRITTEN WAIVER EXECUTED BY LENDER) SHALL BE USED TO CONTRADICT,
VARY, SUPPLEMENT OR MODIFY ANY TERM OF THIS GUARANTY AGREEMENT.  THERE ARE NO ORAL AGREEMENTS BETWEEN
GUARANTOR AND LENDER.


Section 5.13         Waiver
of Right To Trial By Jury.  GUARANTOR
HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY
JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS GUARANTY, THE NOTE, THE
LOAN AGREEMENT, THE SECURITY INSTRUMENT, OR THE OTHER LOAN DOCUMENTS, OR ANY
CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH.  THIS WAIVER OF RIGHT TO TRIAL BY JURY IS
GIVEN KNOWINGLY AND VOLUNTARILY BY GUARANTOR, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE.  LENDER IS
HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER BY GUARANTOR.


Section 5.14         Cooperation.  Guarantor acknowledges that Lender and its
successors and assigns may (i) sell this Guaranty, the Note and other Loan
Documents to one or more investors as a whole loan, (ii) participate the
Loan secured by this Guaranty to one or more investors, (iii) deposit this
Guaranty, the Note and other Loan Documents with a trust, which trust may sell certificates
to investors evidencing an ownership interest in the trust assets, or
(iv) otherwise sell the Loan or interest therein to investors (the
transactions referred to in clauses (i) through (iv) are hereinafter each
referred to as “Secondary Market Transaction”).  Guarantor shall cooperate with Lender in
effecting any such Secondary Market Transaction and shall cooperate to
implement all customary and reasonable requirements imposed by any Rating
Agency or potential investor involved in any Secondary Market Transaction.  Guarantor shall provide such information and
documents relating to Guarantor as Lender may reasonably request in connection
with such Secondary Market Transaction. 
In addition, Guarantor shall make available to Lender all information
concerning its business and operations that Lender may reasonably request.  Lender shall be permitted to share all such
information with the investment banking firms (or other potential investors),
Rating Agencies, accounting firms, law firms and other third-party advisory
firms involved with the Loan and the Loan Documents or the applicable Secondary
Market Transaction.  It is understood
that the information provided by Guarantor to Lender may ultimately be
incorporated into the offering documents for the Secondary Market Transaction
and thus various investors may also see some or all of the information.  Lender and all of the aforesaid third-party
advisors and professional firms shall be entitled to rely on the information
supplied by, or on behalf of, Guarantor in the form as provided by
Guarantor.  Lender may publicize the
existence of the Loan in connection with its marketing 









 



for a Secondary Market Transaction or otherwise as
part of its business development.  All
reasonable third party costs and expenses incurred by Guarantor in connection
with Guarantor’s complying with requests made under this Section 5.14 shall be
paid by Lender.


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FURTHER TEXT ON THIS PAGE]









 



EXECUTED as of the
day and year first above written.


	
  

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD REIT I, INC., a Maryland
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
  Title:

  	
  Executive Vice President – Corporate

  
	
   

  	
   

  	
  Development & Legal and Secretary