AGREEMENT AND OF
THE DOCUMENTS TO BE EXECUTED AND DELIVERED AT CLOSING ARE AND WILL BE FOR THE
BENEFIT OF SELLER AND PURCHASER ONLY AND ARE NOT FOR THE BENEFIT OF ANY THIRD
PARTY, AND ACCORDINGLY, NO THIRD PARTY SHALL HAVE THE RIGHT TO ENFORCE THE
PROVISIONS OF THIS AGREEMENT OR OF THE DOCUMENTS TO BE EXECUTED AND DELIVERED AT
CLOSING.
11.15
CAPTIONS.
THE SECTION HEADINGS APPEARING IN THIS AGREEMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY AND ARE NOT INTENDED, TO ANY EXTENT AND FOR ANY
PURPOSE, TO LIMIT OR DEFINE THE TEXT OF ANY SECTION OR ANY SUBSECTION HEREOF.
11.16
CONSTRUCTION.
THE PARTIES ACKNOWLEDGE THAT THE PARTIES AND THEIR
COUNSEL HAVE REVIEWED AND REVISED THIS AGREEMENT AND THAT THE NORMAL RULE OF
CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES ARE TO BE RESOLVED AGAINST THE
DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE INTERPRETATION OF THIS AGREEMENT OR
ANY EXHIBITS OR AMENDMENTS HERETO.
11.17
TERMINATION OF AGREEMENT.
IT IS UNDERSTOOD AND AGREED THAT IF EITHER
PURCHASER OR SELLER TERMINATE THIS AGREEMENT PURSUANT TO A RIGHT OF TERMINATION
GRANTED HEREUNDER, SUCH TERMINATION SHALL OPERATE TO RELIEVE SELLER AND
PURCHASER FROM ALL OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR SUCH OBLIGATIONS
AS ARE SPECIFICALLY STATED HEREIN TO SURVIVE THE TERMINATION OF THIS AGREEMENT.
53
11.18
TIME OF THE ESSENCE.
TIME IS OF THE ESSENCE OF THIS AGREEMENT AND ALL
COVENANTS AND DEADLINES HEREUNDER. WITHOUT LIMITING THE FOREGOING, PURCHASER AND
SELLER HEREBY CONFIRM THEIR INTENTION AND AGREEMENT THAT TIME SHALL BE OF THE
ESSENCE OF EACH AND EVERY PROVISION OF THIS AGREEMENT, NOTWITHSTANDING ANY
SUBSEQUENT MODIFICATION OR EXTENSION OF ANY DATE OR TIME PERIOD THAT IS PROVIDED
FOR UNDER THIS AGREEMENT. THE AGREEMENT OF PURCHASER AND SELLER THAT TIME IS OF
THE ESSENCE OF EACH AND EVERY PROVISION OF THIS AGREEMENT SHALL NOT BE WAIVED OR
MODIFIED BY ANY CONDUCT OF THE PARTIES, AND THE AGREEMENT OF PURCHASER AND
SELLER THAT TIME IS OF THE ESSENCE OF EACH AND EVERY PROVISION OF THIS AGREEMENT
MAY ONLY BE MODIFIED OR WAIVED BY THE EXPRESS WRITTEN AGREEMENT OF PURCHASER AND
SELLER THAT TIME SHALL NOT BE OF THE ESSENCE WITH RESPECT TO A PARTICULAR DATE
OR TIME PERIOD, OR ANY MODIFICATION OR EXTENSION THEREOF, WHICH IS PROVIDED
UNDER THIS AGREEMENT.
11.19
RECORDATION.
THIS AGREEMENT MAY NOT BE RECORDED OR REGISTERED WITH ANY
LOCAL LAND RECORDS OFFICE AND ANY ATTEMPT TO DO SO SHALL BE OF NO EFFECT
WHATSOEVER. ANY ATTEMPT TO SO RECORD OR REGISTER THIS AGREEMENT OR A MEMORANDUM
THEREOF BY PURCHASER SHALL BE CONSIDERED A DEFAULT BY PURCHASER PURSUANT TO
SECTION 7.1 AND SELLER MAY TERMINATE THIS AGREEMENT AND RETAIN THE DEPOSIT.
54
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the Effective Date.
PURCHASER:
BEHRINGER HARVARD OPERATING
PARTNERSHIP I LP, a Texas limited
partnership
By:
Behringer Harvard REIT I, Inc.
a Maryland corporation,
its general partner
By:
Gerald J. Reihsen, III
Executive Vice President
SELLER:
BEACON CAPITAL STRATEGIC
PARTNERS III, L.P.
By:
BCP Strategic Partners