EXHIBIT 10.8


 


ENVIRONMENTAL INDEMNITY AGREEMENT


 


THIS
ENVIRONMENTAL INDEMNITY AGREEMENT (this “Agreement”), which is dated as
of November 15, 2007, is executed by THE PRIVATE RESIDENCES, LLC, a Delaware
limited liability company (“Borrower”), and BEHRINGER HARVARD
OPPORTUNITY REIT I, INC., a Maryland corporation (“Guarantor”), as a
condition of, and to induce BANK OF AMERICA, N.A., a national banking
association (“Administrative Agent”) and certain other lenders
(collectively, the “Lenders”) now or hereafter made a party to the Loan
Agreement (as herein defined) to make, a construction loan (the “Loan”)
to Borrower evidenced or to be evidenced by a Promissory Note made by Borrower
payable to the order of Administrative Agent in the face principal amount of $58,800,000.00
(the “Note”).  The Loan is secured
or to be secured by a Deed of Trust, Security Agreement, Fixture Filing and
Financing Statement (the “Deed of Trust”) dated of even date herewith
encumbering certain real and personal property as therein described
(collectively, the “Property”), including the land described in Exhibit
A which is attached hereto and made a part hereof.  


 


1.             Certain Definitions.  As used in this Agreement:


 


“Claim”
means any controversy or claim between one or more Obligors and Administrative
Agent, whether arising in contract or tort or by statute, that arises out of or
relates to this Agreement, including any renewals, extensions or modifications
hereof.


 


“Cut-Off
Date” means the earlier of the following two dates: (a) the date on which
the indebtedness and obligations secured by the Deed of Trust have been paid
and performed in full and the Deed of Trust has been released; or (b) the date
on which the lien of the Deed of Trust is fully and finally foreclosed or a
conveyance by deed in lieu of such foreclosure is fully and finally effective
and possession of the Property has been given to and accepted by the purchaser
or grantee free of occupancy and claims to occupancy by Obligors and their
heirs, devisees, representatives, successors and assigns; provided, however,
that if such payment, performance, release, foreclosure or conveyance is
challenged in proceedings under any Debtor Relief Law or otherwise, the Cut-Off
Date shall be deemed not to have occurred until such challenge is validly
released, dismissed with prejudice or otherwise barred by law from further
assertion.


 


“Debtor
Relief Law” means any federal, state or local law, domestic or foreign, as
now or hereafter in effect relating to bankruptcy, insolvency, liquidation,
receivership, reorganization, arrangement, composition, extension or adjustment
of debts, or any similar law affecting the rights of creditors.


 


“Default”
has the same meaning ascribed to the term “Event of Default” in the Deed of
Trust and includes any breach of any covenant, representation or warranty and
any other default under this Agreement, subject to any applicable notice and
cure period.


 


“Default
Rate” has the meaning ascribed to such term in the Note.


 


“Environmental
Assessment” means a report (including all drafts thereof) of an
environmental assessment of the Property of such scope as may be reasonably
requested by 


 


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INDEMNITY AGREEMENT – Page 1


 

















 


Administrative
Agent or another Indemnified Party, including the taking of soil borings and
air and groundwater samples and other above- and below-ground testing, by a
consulting firm reasonably acceptable to such Indemnified Party and made in
accordance with the established guidelines of such Indemnified Party.


 


“Environmental
Claim” means any investigative, enforcement, cleanup, removal, containment,
remedial or other private or governmental or regulatory action at any time
threatened, instituted or completed pursuant to any applicable Environmental
Requirement, against Borrower or any Obligor against or with respect to the
Property or any condition, use or activity on the Property (including any such
action against Administrative Agent and any other Lender), and any claim at any
time threatened or made by any person against any Obligor or against or with
respect to the Property or any condition, use or activity on the Property
(including any such action against Administrative Agent and any other Lender),
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from or in any way arising in connection with any Hazardous Material
or any Environmental Requirement.


 


“Environmental
Damages” means all claims, demands, liabilities (including strict
liability), losses, damages (including consequential damages), causes of
action, judgments, penalties, fines, costs and expenses (including fees, costs
and expenses of attorneys, consultants, contractors, experts and laboratories),
of any and every kind and character, contingent or otherwise, matured or
unmatured, known or unknown, foreseeable or unforeseeable, made, incurred,
suffered, brought, or imposed at any time and from time to time, and arising in
whole or in part from any of the following matters, regardless of whether
caused by an Obligor or a tenant or subtenant, or a prior owner of the Property
or its tenant or subtenant, or any third party:


 


(a)           The presence of any Hazardous
Material on the Property, or any escape, seepage, leakage, spillage, emission,
release, discharge or disposal of any Hazardous Material on or from the
Property, or the migration or release or threatened migration or release of any
Hazardous Material to, from or through the Property, on or before the Cut-Off
Date; or


 


(b)           Any act, omission, event or
circumstance existing or occurring in connection with the handling, treatment,
containment, removal, storage, decontamination, clean-up, transport or disposal
of any Hazardous Material which is or was present on the Property on or before
the Cut-Off Date; or


 


(c)           The breach of any representation,
warranty, covenant or agreement contained in this Agreement because of any
event or condition occurring or existing on or before the Cut-Off Date; or


 


(d)           Any violation on or before the
Cut-Off Date, of any Environmental Requirement in effect on or before the
Cut-Off Date, regardless of whether any act, omission, event or circumstance
giving rise to the violation constituted a violation at the time of the
occurrence or inception of such act, omission, event or circumstance; or


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 2


 

















 


(e)           Any Environmental Claim, or the
filing or imposition of any environmental lien against the Property, because
of, resulting from, in connection with, or arising out of any of the matters
referred to in clauses (a) through (d) preceding.


 


Without
limiting the generality of the foregoing, “Environmental Damages”
includes: (i) the investigation or remediation of any such Hazardous Material
or violation of any such Environmental Requirement, including the preparation
of any feasibility studies or reports and the performance of any cleanup,
remediation, removal, response, abatement, containment, closure, restoration,
monitoring or similar work required by any Environmental Requirement or
necessary to have full use and benefit of the Property as contemplated by the
Loan Documents (including any of the same in connection with any foreclosure
action or transfer in lieu thereof); (ii) injury or damage to any person,
property or natural resource occurring on or off the Property and constituting
an Environmental Claim, including the cost of demolition and rebuilding of any
improvements on real property; (iii) all liability to pay or indemnify any
person or governmental authority for costs expended in connection with any of
the matters included within this definition of Environmental Damages; (iv) the
investigation and defense of any claim, whether or not such claim is ultimately
defeated; and (v) the settlement of any claim or judgment.


 


“Environmental
Law” means any federal, state or local law, statute, ordinance, code, rule,
regulation, license, authorization, decision, order, injunction, decree, or
rule of common law, and any judicial interpretation of any of the foregoing,
which pertains to health or safety (as they relate to exposure to, or the
presence of, Hazardous Materials), any Hazardous Material, or the environment
(including ground or air or water or noise pollution or contamination, and
underground or aboveground tanks) and shall include the Solid Waste Disposal
Act, 42 U.S.C. § 6901 et  seq.; the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et  seq.
(“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of
1986 (“SARA”); the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et
seq.; the Clean Air Act, 42 U.S.C. § 7401 et  seq.; the
Toxic Substances Control Act, 15 U.S.C. § 2601 et  seq.; the Safe
Drinking Water Act, 42 U.S.C. § 300f et  seq.; and any other state
or federal environmental statutes, and all rules, regulations, orders and
decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing
now exist or may be changed or amended or come into effect in the future.


 


“Environmental
Requirement” means any Environmental Law, agreement or restriction
(including any condition or requirement imposed by any insurance or surety
company), as the same now exists or may be changed or amended or come into
effect in the future, which pertains to health or safety (as they relate to
exposure to, or the presence of, Hazardous Materials), any Hazardous Material,
or the environment, including ground, air, water or noise pollution or
contamination, and underground or aboveground tanks. 


 


“Hazardous
Material” means any substance, whether solid, liquid or gaseous: (a) which
is listed, defined or regulated as a “hazardous substance”, “hazardous waste”
or “solid waste”, or otherwise classified as hazardous or toxic, in or pursuant
to any Environmental Requirement; or (b) which is or which contains asbestos,
radon, any polychlorinated biphenyl, urea formaldehyde foam insulation,
explosive or radioactive material, or motor fuel or other 


 


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INDEMNITY AGREEMENT – Page 3


 

















 


petroleum
hydrocarbons; or (c) which causes or poses a threat to cause a contamination or
nuisance on the Property or any adjacent property or a hazard to the
environment or to the health or safety of persons on the Property by virtue of
exposure thereto or the presence thereof.


 


“Indemnified
Party” means each of the following persons and entities: (a) Administrative
Agent, the other Lenders, or any subsequent holder of the Note; (b) Trustee;
(c) any persons or entities owned or controlled by, owning or controlling, or
under common control or affiliated with, Administrative Agent, the other
Lenders, any subsequent holder of the Note, and/or Trustee; (d) any
participants and co-lenders in the Loan; (e) the directors, officers, partners,
employees, attorneys and agents of each of the foregoing persons and entities;
and (f) the heirs, personal representatives, successors and assigns of each of
the foregoing persons and entities.


 


“Loan
Agreement” means that certain Construction Loan Agreement dated of even
date herewith, executed by Administrative Agent, Syndication Agent, Borrower,
and the other Lenders now or hereafter made a party thereto, as hereafter
amended or modified.


 


“Loan
Documents” has the meaning ascribed to such term in the Deed of Trust.


 


“Obligor”
means any individual Borrower or Guarantor and “Obligors” means some or
all of the persons and entities comprising Borrower and/or Guarantor,
collectively.


 


“On” or
“on”, when used with respect to the Property or any property adjacent to
the Property, means “on, in, under, above or about.”


 


“Syndication
Agent” means National City Bank. 


 


“Trustee”
means the Trustee under the Deed of Trust.


 


2.             Representations and Warranties.  Except as otherwise disclosed in the
Environmental Assessment delivered to Administrative Agent in connection with
the Loan, each Obligor, after due inquiry and investigation in accordance with
good commercial or customary practices to determine whether contamination is
present on the Property or elsewhere in connection with any activity on the
Property, hereby represents and warrants to, and covenants with, Administrative
Agent and the other Lenders, without regard to whether Administrative Agent or
the other Lenders has or hereafter obtains any knowledge or report of the
environmental condition of the Property, as follows:


 


(a)           During the period of Borrower’s
ownership of the Property, the Property has not been used for industrial or
manufacturing purposes, for landfill, dumping or other waste disposal
activities or operations, for generation, storage, use, sale, treatment,
processing, recycling or disposal of any Hazardous Material (except in
commercially reasonable amounts and related to Borrower’s operation and
renovation of the Property), for underground or aboveground storage tanks, or
for any other use that could give rise to the release of any Hazardous Material
on the Property; to the best of Obligors’ knowledge, no such use of the
Property occurred at any time prior to the period of Borrower’s ownership of
the Property; and to 


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 4


 

















 


the best of
Obligors’ knowledge, no such use on any adjacent property occurred at any time
prior to the date hereof;


 


(b)           To the best of Obligors’ knowledge,
there is no Hazardous Material (except in commercially reasonable amounts and
related to Borrower’s operation and renovation of the Property), storage tank
(or similar vessel) whether underground or otherwise, sump or well currently on
the Property;


 


(c)           Obligors have received no notice and
have no knowledge of any Environmental Claim or any completed, pending or
proposed or threatened investigation or inquiry concerning the presence or
release of any Hazardous Material on the Property or any adjacent property or
concerning whether any condition, use or activity on the Property or any
adjacent property is in violation of any Environmental Requirement;


 


(d)           To the best of Obligors’ knowledge,
the present conditions, uses and activities of and on the Property do not
violate any Environmental Requirement and the use of the Property which
Borrower (and each tenant and subtenant, if any) makes and intends to make of
the Property complies and will comply with all applicable Environmental
Requirements; 


 


(e)           The Property does not appear on and
to the best of Obligors’ knowledge has never been on the National Priorities
List, any federal or state “superfund” or “superlien” list, or
any other list or database of properties maintained by any local, state or
federal agency or department showing properties which are known to contain or
which are suspected of containing a Hazardous Material; 


 


(f)            Obligors have never applied for and
been denied environmental impairment liability insurance coverage relating to
the Property; and


 


(g)           No Obligor, and to Obligors’
knowledge no tenant or subtenant, has obtained or is required to obtain any
permit or authorization to construct, occupy, operate, use or conduct any
activity on any of the Property by reason of any Environmental Requirement.


 


3.             Violations.  Obligors will not cause, commit, knowingly
permit or allow to continue any violation of any Environmental Requirement in
respect of the Property (a) by any person or entity, including any Obligor, or
(b) by or with respect to the Property or any use of or activity on the
Property.  In addition, Obligors will not
cause, permit or allow to continue the attachment of any environmental lien to
the Property.  Obligors will not place,
install, dispose of or release, or cause, permit, or allow the placing,
installation, disposal, spilling, leaking, dumping or release of, any Hazardous
Material or storage tank (or similar vessel) on the Property and will keep the
Property free of Hazardous Material. 
Notwithstanding the foregoing provisions of this Section 3,
Obligors shall not be in Default under this Section 3 should
Obligors store commercially reasonable quantities of substances on the Property
which technically could be considered Hazardous Material; provided that such
substances are of a type and are held only in a quantity normally used in
connection with the construction, renovation, occupancy or operation of
comparable buildings (including but not limited to, cleaning fluids and
supplies normally used in the day-to-day operation of hotels), and such
substances are being held, stored and used in 


 


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INDEMNITY AGREEMENT – Page 5


 

















 


complete and
strict compliance with all applicable Environmental Requirements.  The indemnity in Section 6 of
this Agreement shall always apply to such substances, and it shall be and
continue to be the responsibility of Obligors to take all remedial actions
required under and in accordance with Section 5 of this Agreement
in the event of any unlawful release of any such substance.


 


4.             Notice to Administrative Agent.  Obligors shall promptly deliver to
Administrative Agent a copy of each report pertaining to the Property or to any
Obligor prepared by or on behalf of any Obligor pursuant to any Environmental
Requirement.  Obligors shall immediately
promptly advise Administrative Agent in writing of any Environmental Claim or
of the discovery of any Hazardous Material on the Property as soon as any
Obligor first obtains knowledge thereof, including a description of the nature
and extent of the Environmental Claim and/or Hazardous Material and all
relevant circumstances, to the extent such information is available at that
time.  Obligor shall deliver, as
reasonably practicable after the initial notice, a full and complete
description of the nature and extent of the Environmental Claim and/or
Hazardous Material and all relevant circumstances.


 


5.             Remedial Actions.


 


(a)           Except as permitted under Section 3
above, if any Hazardous Material is discovered on the Property at any time and
regardless of the cause, Obligors shall promptly at Obligors’ sole risk and
expense and solely under the names of Obligors or any of them:  (i) remove, treat, and dispose of the
Hazardous Material in compliance with all applicable Environmental
Requirements, or if such removal is prohibited by any Environmental
Requirement, take whatever action as is required by any Environmental
Requirement; and (ii) take such other action as is necessary to have the
full use and benefit of the Property as contemplated by the Loan
Documents.  Obligors at their sole
expense shall provide Administrative Agent with reasonably satisfactory evidence
of the actions taken as required in this clause (a).  Obligors shall provide to Administrative
Agent within thirty (30) days of Administrative Agent’s request a bond, letter
of credit or other financial assurance evidencing to Administrative Agent’s
reasonable satisfaction that all necessary funds are readily available to pay
the costs and expenses of the actions required by this clause (a) and to
discharge any assessments or liens established against the Property as a result
of the presence of the Hazardous Material on the Property.  


 


(b)           All remedial actions shall be
conducted (i) in a diligent and timely fashion by licensed contractors acting
under the supervision of a consultant or consulting environmental engineer, and
(ii) in accordance with all Environmental Requirements and all other applicable
governmental requirements.  The selection
of the contractors and consultant or consulting environmental engineer for the
remedial actions, the contracts entered into with such parties, any disclosures
to or agreements with any public or private agencies or parties relating to the
remedial actions and any written plan for the remedial actions (and any changes
thereto) shall each, at the option of Administrative Agent, be subject to the
prior written approval of Administrative Agent, which approval shall not be
unreasonably withheld or delayed.  Within
fifteen (15) business days after completion of such remedial actions, Obligors
shall obtain and deliver to Administrative Agent an Environmental Assessment of
the Property made after such completion which shall confirm to Administrative
Agent’s reasonable satisfaction that all 


 


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INDEMNITY AGREEMENT – Page 6


 

















 


required
remedial action as stated above has been taken and successfully completed and
that there is no evidence or suspicion of any contamination or risk of
contamination on the Property or any adjacent property or of violation of any
Environmental Requirement with respect to any such Hazardous Material.


 


(c)           After the occurrence and during the
continuance of a Default, Administrative Agent may, but shall never be
obligated to, remove or cause the removal of any Hazardous Material from the
Property (or if removal is prohibited by any Environmental Requirement, take or
cause the taking of such other action as is required by any Environmental
Requirement) if Obligors fail to promptly commence such remedial actions
following discovery and thereafter diligently prosecute the same to the
reasonable satisfaction of Administrative Agent (without limitation of
Administrative Agent’s rights to declare a Default under any of the Loan
Documents and to exercise all rights and remedies available by reason
thereof).  Administrative Agent and its
designees are hereby granted access to the Property at any time or times, upon
reasonable notice (which may be written or oral), and a license which is
coupled with an interest and irrevocable, to remove or cause such removal or to
take or cause the taking of any such other action.


 


6.             Indemnity.  Obligors hereby agree to protect, indemnify,
defend and hold Indemnified Parties and each of them harmless from and against,
and, if and to the extent paid, to reimburse them on demand for, any and all
Environmental Damages.  WITHOUT LIMITATION, THE FOREGOING INDEMNITY SHALL
APPLY TO EACH INDEMNIFIED PARTY WITH RESPECT TO ENVIRONMENTAL DAMAGES WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR
ANY OTHER) INDEMNIFIED PARTY. HOWEVER, SUCH INDEMNITY SHALL NOT APPLY TO A
PARTICULAR INDEMNIFIED PARTY TO THE EXTENT THAT THE SUBJECT OF THE
INDEMNIFICATION IS CAUSED BY OR ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNIFIED PARTY. 
Upon demand by any Indemnified Party, Obligors shall diligently defend
any Environmental Claim which affects the Property or which is made or
commenced against such Indemnified Party, whether alone or together with
Obligors or any other person, all at Obligors’ own cost and expense and by
counsel to be approved by such Indemnified Party in the exercise of its
reasonable judgment.  In the alternative,
at any time any Indemnified Party may elect to conduct its own defense through
counsel selected by such Indemnified Party and at the cost and expense of Obligors;
provided that, unless conflicts between Indemnified Parties prevent their
representation by a single counsel, Obligors shall not be required to pay for
more than one counsel for such Indemnified Parties.


 


7.             Binding Obligations; Survival.  The representations, warranties, covenants
and agreements in this Agreement shall be binding upon Obligors and their
successors, assigns and legal representatives and shall inure to the benefit of
Indemnified Parties and each of them; provided, however, that Obligors may not
assign this Agreement, or assign or delegate any of their rights or obligations
under this Agreement, without the prior written consent of Administrative Agent
in each instance.  The representations,
warranties, covenants and agreements in this Agreement shall not terminate on
the Cut-Off Date or upon the release, foreclosure or other termination of the
Deed of Trust, but will survive the Cut-Off Date, the 


 


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INDEMNITY AGREEMENT – Page 7


 

















 


payment in
full of the indebtedness secured by the Deed of Trust, foreclosure of the Deed
of Trust or conveyance in lieu of foreclosure, the release or termination of
the Deed of Trust and any and all of the other Loan Documents, any
investigation by or on behalf of any Indemnified Party, any proceeding under
any Debtor Relief Law, and any other event whatsoever.  Without limiting the generality of the
foregoing, the obligations of Obligors to indemnify Indemnified Parties under Section 6
after the Cut-Off Date shall be presumed, unless shown by a preponderance of
evidence to the contrary.


 


8.             Environmental Assessments.  If any Indemnified Party shall ever have
reason to believe that any Hazardous Material affects the Property, or if any
Environmental Claim is made or threatened, or if a Default shall have occurred
and be continuing, or upon the occurrence of the Cut-Off Date if requested by
any Indemnified Party, Obligors shall at their expense provide to such
Indemnified Party from time to time, in each case within thirty (30) days after
request by such Indemnified Party, an Environmental Assessment made after the
date of such request.  Obligors will
cooperate with each consulting firm making any such Environmental Assessment
and will supply to the consulting firm, from time to time and promptly on
request, all information available to Obligors to facilitate the completion of
the Environmental Assessment.  If
Obligors fail to furnish any Indemnified Party within ten (10) business days
after such Indemnified Party’s request with a copy of an agreement with an
acceptable environmental consulting firm to provide such Environmental
Assessment, or if Obligors fail to furnish to any Indemnified Party such
Environmental Assessment within thirty (30) days after request by such
Indemnified Party, the Indemnified Party may cause any such Environmental
Assessment to be made at Obligors’ expense and risk.  Indemnified Parties and their designees are
hereby granted access to the Property at any time or times, upon reasonable
notice (which may be written or oral), and a license which is coupled with an
interest and irrevocable, to make or cause to be made such Environmental
Assessments.  All reasonable costs and
expenses incurred by any Indemnified Party in connection with any Environmental
Assessment conducted in accordance with this Section 8 shall be
paid by Obligors.  Indemnified Parties
shall be under no duty to make any Environmental Assessment of the Property,
and in no event shall any such Environmental Assessment by any Indemnified
Party be or give rise to a representation that any Hazardous Material is or is
not present on the Property, or that there has been or shall be compliance with
any Environmental Requirement, nor shall Obligors or any other person be entitled
to rely on any Environmental Assessment made by or at the request of any
Indemnified Party.  Indemnified Parties
owe no duty of care to protect Obligors or any other person against, or to
inform them of, any Hazardous Material or other adverse condition affecting the
Property.


 


9.             Information.  The results of all investigations conducted
and/or Environmental Assessments prepared by or for any Indemnified Party shall
be and at all times remain the property of the Indemnified Party and under no
circumstances shall any Indemnified Party have any obligation whatsoever to
disclose or otherwise make available to Obligors or any other party such
results or any other information obtained by any Indemnified Party in
connection with such investigations and reports.  Notwithstanding the foregoing, Indemnified
Parties hereby reserve the right, and Obligors hereby expressly authorize any
Indemnified Party, to make available to any party (including any governmental
agency or authority and any prospective bidder at any foreclosure sale of the
Property) any and all Environmental Assessments that any Indemnified Party may
have with respect to the Property. 
Obligors consent to Indemnified Parties notifying 


 


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INDEMNITY AGREEMENT – Page 8


 

















 


any party
(either as part of a notice of sale or otherwise) of the availability of any or
all of the Environmental Assessments and the information contained
therein.  Obligors acknowledge that
Indemnified Parties cannot control or otherwise assure the truthfulness or
accuracy of the Environmental Assessments, and further acknowledge that the
release of the Environmental Assessments, or any information contained therein,
to prospective bidders at any foreclosure sale of the Property may have a
material and adverse effect upon the amount that a party may bid at such
sale.  Obligors agree that Indemnified
Parties shall have no liability whatsoever as a result of delivering any or all
of the Environmental Assessments or any information contained therein to any
third party, and Obligors hereby release and forever discharge Indemnified
Parties from any and all claims, damages, or causes of action, arising out of,
connected with or incidental to the Environmental Assessments or the delivery
thereof.  Notwithstanding the foregoing,
in the event any Indemnified Party brings any claim against Obligors as a
result of an investigation or Environmental Assessment, such Indemnified Party
shall provide Obligors with such investigation or Environmental Assessment in
connection with the claim.


 


10.           Cross-Default with Loan Documents.  Any Default under this Agreement shall
constitute a Default under the Loan Documents. 
In addition, any Default under any of the Loan Documents shall
constitute a Default hereunder.


 


11.           Payable on Demand; Remedies.  Any amounts to be paid under this Agreement
by Obligors (or any of them) from time to time shall be payable by Obligors
within ten (10) days after demand by Administrative Agent or any other
Indemnified Party.  In addition to any
other rights or remedies Administrative Agent may have under this Agreement, at
law or in equity, upon the occurrence of a Default under this Agreement,
Administrative Agent may do or cause to be done whatever is necessary to cause
the Property to comply with all Environmental Requirements, and the cost
thereof shall become immediately due and payable upon demand by Administrative
Agent, and if not paid when due shall accrue interest at the Default Rate until
paid.


 


12.           Cumulative Rights.  The liability of Obligors or any other person
under this Agreement shall not be limited or impaired in any way by any
provision in the Loan Documents or applicable law limiting Obligors’ or such
other person’s liability or Administrative Agent’s recourse or rights to a
deficiency judgment, or by any change, extension, release, inaccuracy, breach
or failure to perform by any party under the Loan Documents, Obligors’ (and, if
applicable, such other person’s) liability hereunder being direct and primary
and not as a guarantor or surety. 
Nothing in this Agreement or in any Loan Document shall limit or impair
any rights or remedies of Administrative Agent, Trustee and/or any other
Indemnified Party against any Obligor or any other person under any Environmental
Requirement or otherwise at law or in equity, including any rights of
contribution or indemnification.


 


13.           Consideration.  Obligors acknowledge that Administrative
Agent and other Lenders have relied and will rely on the representations,
warranties, covenants and agreements herein in closing and funding the Loan and
that the execution and delivery of this Agreement is an essential condition but
for which Administrative Agent and the other Lenders would not close or fund
the Loan.


 


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INDEMNITY AGREEMENT – Page 9


 

















 


14.           No Waiver.  No delay or omission by any Indemnified Party
to exercise any right under this Agreement shall impair any such right nor
shall it be construed to be a waiver thereof. 
No waiver of any single breach or default under this Agreement shall be
deemed a waiver of any other breach or default. 
Any waiver, consent or approval under this Agreement must be in writing
to be effective.


 


15.           Notices.  All notices, requests, consents, demands and
other communications required or which any party desires to give hereunder
shall be in writing and shall be deemed sufficiently given or furnished if
delivered by personal delivery, by courier, or by registered or certified
United States mail, postage prepaid, addressed to the party to whom directed at
the addresses specified at the end of this Agreement (unless changed by similar
notice in writing given by the particular party whose address is to be changed)
or by electronic mail or facsimile.  Any
such notice or communication shall be deemed to have been given either at the
time of personal delivery or, in the case of courier or mail, as of the date of
first attempted delivery at the address and in the manner provided herein, or,
in the case of electronic mail or facsimile, upon receipt; provided, that
service of a notice required by any applicable statute shall be considered
complete when the requirements of that statute are met.  Notwithstanding the foregoing, no notice of change
of address shall be effective except upon actual receipt.  This Section 15 shall not be
construed in any way to affect or impair any waiver of notice or demand
provided in any Loan Document or to require giving of notice or demand to or
upon any person in any situation or for any reason.


 


16.           Invalid Provisions.  A determination that any provision of this
Agreement is unenforceable or invalid shall not affect the enforceability or
validity of any other provision and a determination that the application of any
provision of this Agreement to any person or circumstance is illegal or
unenforceable shall not affect the enforceability or validity of such provision
as it may apply to other persons or circumstances.


 


17.           Construction.  Whenever in this Agreement the singular number
is used, the same shall include plural where appropriate, and vice versa; and
words of any gender in this Agreement shall include each other gender where
appropriate.  The headings in this
Agreement are for convenience only and shall be disregarded in the
interpretation hereof.  Reference to “person”
or “entity” means firms, associations, partnerships, joint ventures,
trusts, limited liability companies, corporations and other legal entities,
including public or governmental bodies, agencies or instrumentalities, as well
as natural persons.  The words “include”
and “including” shall be interpreted as if followed by the words “without
limitation.”


 


18.           Joint and Several Liability and
Waivers by Obligors.


 


(a)           Each Obligor agrees that it is
jointly and severally liable to Indemnified Parties for the payment of all
obligations arising under this Agreement, and that such liability is
independent of the obligations of the other Obligors.  Any Indemnified Party may bring an action
against any Obligor, whether or not any action is brought against the other
Obligors.


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 10


 

















 


(b)           Each Obligor agrees that any release
which may be given by any Indemnified Party to the other Obligors will not
release such Obligor from its obligations under this Agreement.


 


(c)           Each Obligor waives any right to
assert against any Indemnified Party any defense, setoff, counterclaim, or
claims which such Obligor may have against the other Obligors or any other
party liable to Indemnified Parties or any of them for the obligations of
Obligors under this Agreement.


 


(d)           Each Obligor agrees that it is solely
responsible for keeping itself informed as to the financial condition of the
other Obligors and of all circumstances which bear upon the risk of nonpayment.
Each Obligor waives any right it may have to require Indemnified Parties to
disclose to such Obligor any information which Indemnified Parties or any of
them may now or hereafter acquire concerning the financial condition of the
other Obligors.


 


(e)           Each Obligor waives all rights to
notices of acceptance of this Agreement and further waives all rights to
notices of default or nonperformance by any other Obligor under this Agreement.


 


(f)            Until such time as (i) the
indebtedness and obligations secured by the Deed of Trust have been paid and
performed in full and the Deed of Trust has been released and (i) no claims
have been made that are covered under this Agreement, each Obligor waives any
right of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or right of
subrogation under any Debtor Relief Law, which such Obligor may now or
hereafter have against any other Obligor or any other person with respect to
the obligations incurred under this Agreement. 
Each Obligor waives any right to enforce any remedy that any Indemnified
Party now has or may hereafter have against any other Obligor.


 


(g)           No provision or waiver in this
Agreement shall be construed as limiting the generality of any other provision
or waiver contained in this Agreement. 
All of the waivers contained herein are irrevocable and unconditional
and are intentionally and freely made by each Obligor.


 


(h)           Subject to Section 18(f) above, each
Obligor hereby severally, absolutely, unconditionally, knowingly, and expressly
waives: (i) any right of subrogation such Obligor has or may have as against
Borrower with respect to the obligations arising hereunder; (ii) any right to
proceed against Borrower or any other person or entity, now or hereafter, for
contribution, indemnity, reimbursement, or any other suretyship rights and
claims, whether direct or indirect, liquidated or contingent, whether arising
under express or implied contract or by operation of law, which Obligor may now
or hereafter have as against Borrower with respect to the obligations arising
hereunder; and (iii) any right to proceed or seek recourse against or with
respect to any property or asset of Borrower.


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 11


 

















 


19.           Applicable Law.  The laws of the State of Missouri and
applicable United States federal law shall govern the rights and duties of the
parties hereto and the validity, enforcement and interpretation hereof.


 


20.           Forum.  This Agreement is performable in St. Louis,
Missouri.  Each Obligor hereby
irrevocably submits generally and unconditionally for itself and in respect of
its property to the jurisdiction of any state court or any United States
federal court sitting in the State of Texas and to the jurisdiction of any
state court or any United States federal court sitting in the state in which
any of the Property is located, over any suit, action or proceeding arising out
of or relating to this Agreement.  Each
Obligor hereby irrevocably waives, to the fullest extent permitted by law, any
objection that such Obligor may now or hereafter have to the laying of venue in
any such court and any claim that any such court is an inconvenient forum.  Each Obligor hereby agrees and consents that,
in addition to any methods of service or process provided for under applicable
law, all service of process in any such suit, action or proceeding in any state
court or any United States federal court sitting in the state specified above,
may be made by certified or registered mail, return receipt requested, directed
to such Obligor at its address for notice stated below, or at a subsequent
address of which Administrative Agent received actual notice from such Obligor
in accordance with the Loan Documents, and service so made shall be complete
five (5) days after the same shall have been so mailed.  Nothing herein shall affect the right of any
Indemnified Party to serve process in any manner permitted by law or limit the
right of such Indemnified Party to bring proceedings against any Obligor in any
other court or jurisdiction.


 


21.           Administrative Agent Assigns;
Disclosure of Information. 
Administrative Agent may, at any time, sell, transfer, or assign the
Loan and any and 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, in each case, in accordance with the Loan
Agreement.  In the event of any such
sale, transfer or assignment of the Loan or any part thereof, the rights and
benefits under this Agreement may be transferred therewith to the extent
applicable to the Loan or part thereof being sold, transferred or
assigned.  Obligors waive notice of any
sale, transfer or assignment of the Loan or any part thereof, and agree that
failure to give notice of any such sale, transfer or assignment will not affect
the liabilities of Obligors hereunder. 
Administrative Agent is hereby authorized to disseminate any information
it now has or hereafter obtains pertaining to the Property or this Agreement,
including credit and/or other information on Obligors and/or any party liable,
directly or indirectly, for any part of the obligations under this Agreement,
in accordance with Section 6.6 of the Loan Agreement and to any actual or
prospective assignee or participant with respect to the Loan, to any of
Administrative Agent’s affiliates, including Banc of America Securities LLC, to
any regulatory body having jurisdiction over Administrative Agent, and to any
other parties as necessary or appropriate in Administrative Agent’s reasonable
judgment.


 


22.           Execution; Modification.  This Agreement may be executed in any number
of identical counterparts, each of which shall be deemed an original for all
purposes and all of which constitute, collectively, one agreement.  This Agreement may be amended only by an 


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 12


 

















 


instrument in
writing intended for that purpose executed jointly by an authorized
representative of each party hereto.


 


23.           WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OBLIGORS
AND ADMINISTRATIVE AGENT HEREBY WAIVE TRIAL BY JURY IN RESPECT OF ANY “CLAIM”
AS DEFINED IN SECTION 1.  THIS
WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY OBLIGORS AND
ADMINISTRATIVE AGENT.  THIS PROVISION IS
A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.  OBLIGORS AND ADMINISTRATIVE AGENT ARE EACH
HEREBY AUTHORIZED TO FILE A COPY OF THIS SECTION 23 IN ANY PROCEEDING AS
CONCLUSIVE EVIDENCE OF THIS WAIVER OF JURY TRIAL.  EACH OBLIGOR FURTHER REPRESENTS AND WARRANTS
THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND
THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.


 


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


 


[REMAINDER OF THIS
PAGE INTENTIONALLY LEFT BLANK]


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Page 13


 

















 


EXECUTED and
DELIVERED as of the date first set forth above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  THE PRIVATE
  RESIDENCES, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Behringer
  Harvard Private Residences, Inc.,

  
	
   

  	
   

  	
  a Delaware
  corporation, its authorized member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Gerald
  J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
   

  	
  Executive
  Vice President - Corporate 

  
	
   

  	
   

  	
  Development
  & Legal and Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  GUARANTOR:

  	
   

  
	
   

  	
   

  
	
   

  	
  BEHRINGER
  HARVARD OPPORTUNITY REIT I, INC.,

  
	
   

  	
  a Maryland
  corporation

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
  Name:

  	
  Gerald J.
  Reihsen, III

  
	
   

  	
  Title:

  	
  Executive
  Vice President – Corporate

  
	
   

  	
   

  	
  Development
  & Legal and Secretary

  
								



 


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – 
Signature Page


 

















 


EXHIBIT A


 


LEGAL DESCRIPTION


 


Land situated
in the City of St. Louis, and State of Missouri, to wit:


 


Parcel
1 (Fee Simple):


 


Units 8, 10,
11, 12, 13, 14 and 15 of Park Plaza Master Condominium, a Condominium in City
Block 3882, according to the plat thereof recorded in Book 12082006 page 0379,
including an un-divided interest in the common elements thereto belonging, all
according to and more particularly described in the Master Declaration of
Condominium Park Plaza Master Condominium dated December 1, 2006 and recorded
December 8, 2006 in Book 12082006 page 0378 of the St. Louis County Records.


 


Parcel
2 (Easement):


 


Sub-surface
easement more particularly described as follows: A portion of the public street
rights-of-way known as Kingshighway Boulevard, 100 feet wide, and Maryland
Plaza, 80 feet wide, adjacent to Block 3882 of the City of St. Louis, Missouri,
lying between horizontal planes at elevation 72.35 and 82.20 above 0.00 on the
St. Louis City Datum and bounded by vertical planes described as follows:
Commencing at the intersection of the Northern line of Lindell Boulevard, 100
feet wide, with the Eastern line of Kingshighway Boulevard, 100 feet wide;
thence along said Eastern line of Kingshighway Boulevard, North 6 degrees 21
minutes 40 seconds West, 233.89 feet to the point of beginning of the herein
described tract of land; thence leaving said Eastern street line, and running
South 85 degrees 17 minutes 58 seconds West, 17.01 feet to a point; thence
along a line parallel with the Eastern line of Kingshighway Boulevard, North 6
degrees 21 minutes 40 seconds West, 202.48 feet to a point; thence North 36
degrees 10 minutes 13 seconds East, 34.20 feet to a point; thence along a line
parallel with the Southern line of Maryland Plaza, South 88 degrees 57 minutes
40 seconds East, 107.00 feet to a point; thence North 86 degrees 28 minutes 40
seconds East, 25.15 feet to a point; thence along a line parallel with the
Southern line of Maryland Plaza, South 88 degrees 57 minutes 40 seconds East,
61.50 feet to a point; thence south 6 degrees 21 minutes 40 seconds East, 14.12
feet to a point on the Southern line of Maryland Plaza at the Northeast corner
of property conveyed to Singleton by Deed recorded in Book 4189 page 404 of the
St. Louis City records; thence along the Southern line of Maryland Plaza, North
88 degrees 57 minutes 40 seconds West, 200.00 feet to its intersection with the
Eastern line of Kingshighway Boulevard, as aforementioned; thence along said
Eastern street line, South 6 degrees 21 minutes 40 seconds East, 216.87 feet to
the point of beginning.


 


Parcel
3 (Easement):


 


Easement for
the purpose of vehicular and pedestrian access, ingress and egress, according
to Easement Agreement and Parking Space Lease dated July 31, 1998, by and
between 


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Exhibit “A”


 

















 


W.S. Stallings
Corporation, and Kingsdell L.P., recorded October 22, 1998 in Book 1444M page
1253 over the area described therein as follows:


 


A tract of
land in Block 3882 of the City of St. Louis, Missouri, and described as
follows:  Beginning at a point in the
South line of Maryland Avenue distant 200 feet 0 inches East of the
intersection of said South line with the East line of Kingshighway Boulevard;
thence Southwardly parallel with Kingshighway Boulevard along the East line of
property conveyed to Marvin E. Singleton by deed recorded in Book 4189 page
404, 94 feet 9-1/2 inches to a point distant 94 feet 0 inches South of the
South line of Maryland Avenue; thence Eastwardly parallel with Maryland Avenue
and along the North line of property conveyed to Harvey Imbolden by deed
recorded in Book 6227 page 294, 62 feet 0-3/8 inches to a point; thence Northwardly
perpendicular with Maryland Avenue, 39 feet 0 inches to a point; thence
Westwardly parallel with Maryland Avenue, 25 feet 6 inches to a point; thence
Northwardly perpendicular with Maryland Avenue, 55 feet 0 inches to a point in
the South line of Maryland Avenue, 48 feet 9 inches to the point of beginning.


 


Parcel
4 (Easement):


 


Easements for
the purpose of construction, use, maintenance, repair and reconstruction of
driveways and ingress and egress created by instrument designated “Driveway
Easement Agreement”, dated May 18, 1981 and recorded in Book 271M page 64 on
May 31, 1981 over the following described property:


 


Easement “A”:


 


A tract of
land being part of Block 3882 of the City of St. Louis, Missouri, and described
as follows:  Beginning at a point on the
West line of York Avenue, 40 feet wide, at the Northeast corner of property
conveyed to “220 Television Inc.”, by deed recorded in Book 154M page 1091 of
the St. Louis City records, said point being distant North 7 degrees 08 minutes
40 seconds West, 215.57 feet from the Northern line of Lindell Boulevard, 100
feet wide, as measured along the Western line of York Avenue; thence leaving
said Western street line and running along the Northern line of “220 Television
Inc.”, North 88 degrees 57 minutes 40 seconds West, 88.41 feet to a point, said
point being on the direct Southward prolongation of the Eastern wall of a
Concrete Parking Garage; thence leaving said point and running along said
prolongation, North 1 degree 06 minutes 00 seconds East, 20.00 feet to a point;
thence leaving said point and running South 88 degrees 57 minutes 40 seconds
East, 85.51 feet to a point on the Western line of York Avenue, as
aforementioned; thence along said Western street line South 7 degrees 08
minutes 40 seconds East, 20.21 feet to the point of beginning.


 


Easement “B”:


 


A tract of
land being part of Block 3882 of the City of St. Louis, Missouri, and described
as follows:  Commencing at a point on the
Western line of York Avenue, 40 feet wide, at the Southeast corner of property
conveyed to H & M Koplar by deed recorded in Book 207M page 


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Exhibit “A”


 

















 


206 of the St.
Louis City records, said point being distant South 7 degrees 08 minutes 40
seconds East, 94.97 feet from the Southern line of Maryland Plaza, 80 feet
wide, as measured along the Western line of York Avenue; thence along said
Western street line South 7 degrees 08 minutes 40 seconds East, 19.00 feet to
the point of beginning of the herein described tract of land; thence continuing
along said street line South 7 degrees 08 minutes 40 seconds East, 34.00 feet
to a point; thence leaving said Western street line and running North 75
degrees 38 minutes 39 seconds West, 8.51 feet and North 84 degrees 43 minutes
40 seconds West 67.74 feet to a point on the Eastern wall of a concrete parking
garage; thence along said Eastern wall North 1 degree 06 minutes 00 seconds
East, 20.50 feet to a point; thence leaving said point and running North 89
degrees 06 minutes 58 seconds East, 59.61 feet and North 70 degrees 50 minutes
17 seconds East, 12.14 feet to the point of beginning.


 


Parcel
5 (Easement):


 


Easement for
the purpose of construction use, storage, maintenance, demolition, repair and
reconstruction of a basement, including access thereto, created by instrument
designated “Basement Easement Agreement”, dated May 18, 1981 and recorded in
Book 271M page 84 on May 21, 1981 over the following described property;


 


A tract of
land being part of Block 3882 of the City of St. Louis, Missouri, and described
as follows: Commencing at a point on the Northern line of Lindell Boulevard,
100 feet wide, at the Southwest corner of property conveyed to “220 Television
Inc.”, by deed recorded in Book 154M page 1091 of the St. Louis City records;
thence along the Northern line of Lindell Boulevard South 89 degrees 00 minutes
00 seconds East, 5.92 feet to a point; thence leaving said street line and
running North 1 degrees 02 minutes 17 seconds East, 24.71 feet to the point of
beginning of the herein described tract of land; thence continuing along the
last mentioned line, North 1 degree 02 minutes 17 seconds East, 86.65 feet to
its intersection with the Southern wall of a two story brick and concrete block
building; thence along the wall of said building the following bearing and
distances: North 88 degrees 53 minutes 07 seconds West, 1.20 feet; North 0
degrees 55 minutes 46 seconds East, 1.36 feet; South 88 degrees 53 minutes 07
seconds East, 1.20 feet; North 0 degrees 55 minutes 46 seconds East, 50.77 feet
and North 88 degrees 53 minutes 01 seconds West, 9.04 feet to its intersection
with the Eastern wall of a one story brick and concrete block building; thence
along the wall line of said one story and said two story buildings North 1
degree 06 minutes 59 seconds East, 24.32 feet to the Northeast corner of said
one story building; thence leaving said point and running the following
bearings and distances; South 88 degrees 52 minutes 34 seconds East, 8.51 feet;
South 1 degree 06 minutes 59 seconds West, 12.67 feet; South 88 degrees 53
minutes 01 seconds East, 8.93 feet and South 1 degree 12 minutes 50 seconds
West, 57.77 feet to the Northwest corner of an eight story brick building;
thence along the Western wall of said building and the following bearings and
distances: South 1 degree 23 minutes 44 seconds East, 78.19 feet; South 88
degrees 36 minutes 16 seconds West, 0.27 feet and South 1 degree 23 minutes 44
seconds East, 14.46 feet to the Southwest corner thereof; thence leaving said
point and running North 89 degrees 17 minutes 57 seconds West, 11.81 feet to
the point of beginning.


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Exhibit “A”


 

















 


Parcel
6 (Easement):


 


Easements for
ingress, egress, and placement of mechanical systems and storage units, created
by the Reciprocal Easement Agreement executed by and between Chase Park Plaza
Hotel, LLC and The Private Residences, LLC, dated December 1, 2006 and recorded
December 8, 2006 in Book 12082006 page 0382 and re-recorded December 13, 2006
in Book 12132006, Page 0266.


 


ENVIRONMENTAL
INDEMNITY AGREEMENT – Exhibit “A”