Exhibit 10.108


 


PROMISSORY NOTE


 


	
  $20,071,929

  	
   

  	
  August
  3, 2007

  



 


BHFS IV, LLC, a Delaware
limited liability company (“Borrower”) FOR
VALUE RECEIVED, promises to pay to the order of Behringer Harvard Opportunity
OP I, LP, a Texas limited partnership or its assigns (“Lender”),
at such place as Lender may from time to time designate in writing, the
principal sum of TWENTY MILLION SEVENTY-ONE THOUSAND NINE HUNDRED TWENTY-NINE
DOLLARS ($20,071,929) with interest on the outstanding principal amount at the
rates set forth herein (the “Indebtedness”).


 


DEFINITIONS


 


“Business Day”
shall mean all days other than Saturday, Sunday or any other day on which
national banks doing business in Dallas, Texas are not open for business.


 


“Deed of
Trust” shall mean that certain Deed of Trust executed by Borrower on
behalf of Lender and dated of even date herewith.


 


“Default
Interest” shall mean any interest accruing at the Default Interest
Rate and payable pursuant to the terms hereof or of the Deed of Trust.


 


“Default
Interest Rate” shall mean a rate of interest per annum equal to the
lesser of either (a) thirteen percent (13%) or (b) the maximum rate
of interest which may be collected from Borrower under applicable law.


 


“Event of
Default” shall mean any one or more of the following, without
limitation as to the others: (i) failure of Borrower to pay when due any
installment of principal or interest due under this Note, (ii) any assignment
for the benefit of creditors by Borrower or (iii) commencement of any
proceeding under the U.S. Bankruptcy Code or any law of the United States or of
any state relating to the insolvency, receivership, custodianship or debt
adjustment by Borrower or the commencement of any such proceeding against
Borrower, or if Borrower admits in writing an inability to pay debts generally
as they become due or becomes insolvent, or if a receiver, trustee, custodian
or liquidator shall be appointed for Borrower or any substantial part of the
Property (as defined in the Deed of Trust).


 


“Extended
Maturity Date” shall mean July 31, 2008, the date which shall be six
months after the Maturity Date.


 


“Interest
Rate” shall mean ten percent (10.0%) per annum.


 


“LLC
Agreement” shall mean that certain limited liability company
agreement of Borrower dated as of July 31, 2007.


 


“Maturity
Date” shall mean January 31, 2008.


 


“Payment Date”
shall mean the first day of each calendar month, commencing on the date set
forth in Section 1.1, and the Maturity Date (or, if any such date is not a
Business Day, then the first Business Day immediately before such date).


 


“Security Agreement” shall mean that certain Security Agreement
executed by Borrower on


 


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behalf of Lender and dated of
even date herewith.


 


SECTION 1 - STATED
MATURITY; INTEREST AND PRINCIPAL PAYMENTS.


 


1.1           Payment of Interest. Commencing on September 1, 2007, and
continuing monthly on the same date of each calendar month thereafter up to and
until the Maturity Date or the Extended Maturity Date, as applicable, an
installment of all accrued and unpaid interest shall be due and payable to
Lender at the Interest Rate or, during any time at which an Event of Default is
continuing at the Default Interest Rate. The amount of the Loan was determined
on the basis of the Borrower’s projection of the interest that will accrue on
the disbursed principal of the Note until the Maturity Date, which interest has
been estimated not to exceed Nine Hundred Fifty-Five Thousand Eight Hundred Six
Dollars ($955,806.00) (which amount being referred to as the “Interest Reserve Account”). Lender will
disburse on the first day of each calendar month (regardless of whether
Borrower submits a request for advance to Lender for a disbursement from the
Interest Reserve Account to pay accrued interest on the Loan) a portion of the
Loan sufficient to pay accrued interest then due and payable on the Note until
the Maturity Date, and the amount thereof shall increase the principal
outstanding under the Note and shall reduce the balance of the Interest Reserve
Account. In no event shall the amount of the Interest Reserve Account in any
way limit or affect Borrower’s obligations to pay any interest due on the Loan
and to the extent proceeds from the Interest Reserve Account are not disbursed
for, or are insufficient for, such purpose, Borrower shall pay interest on the
Loan with funds derived from sources other than the Loan.


 


1.2           Payments of Principal. On the Maturity Date or the Extended Maturity
Date, if such Maturity Date is extended pursuant to Section 1.3 below, the
unpaid principal balance, together with all accrued but unpaid interest, shall
be due and payable in full.


 


1.3           Payment on Stated Maturity Date. Any remaining unpaid Indebtedness shall be due
and payable in full at the Maturity Date provided, however, that Borrower may
extend the Maturity Date for one six month period upon written notice to Lender
no less than thirty days prior to the Maturity Date.


 


1.4           Computation of Interest. Interest under this Note shall be paid as set
forth herein and shall be calculated based on actual days elapsed and a three
hundred sixty (360) day year.


 


1.5           Method of Payment. Each payment due hereunder shall not be deemed
received by Lender until received on a Business Day in Federal funds in lawful
money of the United States of America immediately available to Lender prior to
2:00 p.m. local time at the place then designated by Lender. Any payment
received on a Business Day after the time established by the preceding
sentence, shall be deemed to have been received on the immediately following
Business Day for all purposes.


 


1.6           Application of Payments. Payments under this Note shall be applied
first to the payment of Default Interest and other costs and charges due in
connection with this Note, as Lender determines in its sole discretion, then to
the payment of accrued but unpaid interest, and then to reduction of the
outstanding principal balance (first to payment of the current installment and
the balance in inverse order of maturity whether or not then due). No principal
amount repaid may be reborrowed. All amounts due under this Note shall be
payable without setoff, counterclaim or any other deduction whatsoever.


 


1.7           Prepayment. The Indebtedness evidenced by this Note may be prepaid in whole or in
part at any time without penalty.


 


1.8           No Usury. The provisions of this Note and of all other agreements between
Borrowers and Lender, whether now existing or hereafter arising and whether
written or oral, including, but not limited to, the Loan Documents, are hereby
expressly limited so that, after taking into account all amounts


 


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deemed interest or as reducing
the true principal balance of the Loan, in no contingency or event whatsoever,
whether by reason of demand or acceleration of the maturity of this Note or
otherwise, shall the amount contracted for, charged, taken, reserved, paid, or
agreed to be paid to Lender for the use, forbearance, retention or detention of
the money loaned under this Note and related indebtedness exceed the maximum
amount permissible under applicable law. If, from any circumstance whatsoever,
performance or fulfillment of any provision hereof or of any agreement between
Borrower and Lender shall, at the time performance or fulfillment of such
provision shall be due, exceed the limit for interest prescribed by law or
otherwise transcend the limit of validity prescribed by applicable law, then
ipso facto the obligation to be performed or fulfilled shall be reduced to such
limit; and if, from any circumstance whatsoever, Lender shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to
the reduction of the principal balance owing under this Note in the inverse
order of its maturity (whether or not then due) or at the option of Lender be
paid over to Borrower, and not to the payment of interest. All Interest
(including any amounts or payments judicially or otherwise under the law deemed
to be interest) contracted for, charged, taken, reserved, paid or agreed to be
paid to Lender shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread throughout the full term of the Note, including
any extensions or renewals thereof, until payment in full of the Indebtedness
so that the Interest thereof for such full period will not exceed at any time
the maximum amount permitted by applicable law. To the extent that Lender is
relying on Chapter 303, as amended, of the Texas Finance Code to determine the
maximum amount of interest permitted by applicable law on the principal of the
Loan, Lender will utilize the weekly rate ceiling from time to time in effect
as provided under Chapter 303, as amended. To the extent United States federal
law permits a greater amount of interest than is permitted under Texas law,
Lender will rely on United States federal law instead of such applicable law. Additionally,
to the extent permitted by applicable law now or hereafter in effect, Lender
may, at its option and from time to time, implement any other method of
computing the maximum lawful rate under such Chapter 303, as amended, or under
other applicable law by giving notice, if required, to Borrower as provided by
applicable law now or hereafter in effect. This paragraph 1.8 will control all
agreements between Borrowers and Lender.


 


SECTION
2 - DEFAULT; REMEDIES


 


2.1           Acceleration. Lender may, by notice to Borrower at any time during the existence of
an Event of Default, declare immediately due and payable the entire principal
amount outstanding hereunder together with all interest and other charges due
hereunder including, without limitation, all Default Interest.


 


2.2           Default Interest Rate After an Event of Default, the Default Interest
Rate shall apply, in place of the Interest Rate, to all amounts outstanding
under the Loan. Such Default Interest shall be compounded on the monthly
anniversary of such Event of Default until paid in full.


 


2.3           Remedies. The remedies of Lender as provided herein, or in the Deed of Trust, or
at law or in equity shall be cumulative and concurrent, and may be pursued
singly, successively, or together at the sole discretion of Lender, and may be
exercised as often as occasion therefor shall occur. The failure at any time to
exercise any right or remedy shall not constitute a waiver of the right to
exercise the right or remedy at any other time.


 


SECTION
3 - SECURITY


 


Borrower’s obligations under
this Note are secured by the Deed of Trust and the Security Agreement. The covenants
of the Deed of Trust are incorporated by reference into this Note.


 


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SECTION
4 - WAIVER


 


Presentment for payment,
demand, notice of dishonor, protest, and notice of protest, stay of execution
and all other defenses to payment generally are hereby waived by Borrower. No
extension or indulgence or release of collateral granted from time to time
shall be construed as a novation of this Note or as a reinstatement of the
indebtedness evidenced hereby or as a waiver of the rights of Lender herein.


 


SECTION
5 - EXCULPATION


 


5.1           Lender Exculpation. Notwithstanding anything to the contrary
contained in this Note, neither Lender nor any present or future shareholder,
director, officer or partner of Lender or of any entity which is now or
hereafter a shareholder, director, officer or partner of Lender (or of any
entity which is now or hereafter a shareholder, director, officer or partner of
a shareholder, director, officer or partner of Lender) shall have any personal
liability, directly or indirectly, under or in connection with this Note or any
agreement made or entered into under or in connection with the provisions of
this Note, or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and Borrower hereby forever and
irrevocably waives and releases any and all such personal liability. In
addition, neither Lender nor any successor or assign of Lender shall have at
any time or times hereafter any personal liability, directly or indirectly,
under or in connection with or secured by any agreement, lease, instrument,
encumbrance, claim or right affecting or relating to the Property or to which
the Property is now or hereafter subject. The limitation of liability provided
in this paragraph is in addition to, and not in limitation of, any limitation
on liability applicable to Lender provided by law or by any other contract,
agreement or instrument.


 


5.2           Borrower Exculpation. The personal liability of Borrower to pay the
amounts due under the Note shall be limited to Borrower’s interest in the
Collateral (as defined in the Security Agreement), the Mortgaged Property (as
defined in the Deed of Trust) and in any other collateral given to Lender as
security for the Indebtedness.


 


SECTION
6 - GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL;
SEVERABILITY


 


6.1           Governing Law. This Note shall be governed by, and construed in accordance with, the
substantive law of the State of Texas.


 


6.2           SUBMISSION TO JURISDICTION/SERVICE
OF PROCESS. BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF
TEXAS. FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF
OR BASED UPON THIS NOTE, THE SUBJECT MATTER HEREOF, OR THE LOAN. BORROWER TO
THE EXTENT PERMITTED BY APPLICABLE LAW (A) HEREBY WAIVES, AND AGREES NOT TO
ASSERT, BY WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION
OR OTHER PROCEEDING BROUGHT IN THE ABOVE-NAMED COURTS ANY CLAIM THAT IT IS NOT
SUBJECT PERSONALLY TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT, ACTION OR
PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE SUIT,
ACTION OR PROCEEDING IS IMPROPER OR THAT THIS NOTE, THE SUBJECT MATTER HEREOF,
OR THE OTHER LOAN (AS APPLICABLE) MAY NOT BE ENFORCED IN OR BY SUCH COURT AND
(B) HEREBY WAIVES THE RIGHT TO REMOVE ANY SUCH ACTION, SUIT OR PROCEEDING
INSTITUTED BY A LENDER IN STATE COURT TO FEDERAL COURT, OR TO REMAND AN ACTION
INSTITUTED IN FEDERAL COURT TO STATE COURT (UNLESS THE FEDERAL COURT HAS NO
SUBJECT MATTER


 


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JURISDICTION.
BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY MAIL AT THE ADDRESS TO WHICH
NOTICES ARE TO BE GIVEN TO IT PURSUANT TO SECTION 7 HEREOF. BORROWER AGREES
THAT ITS SUBMISSION TO JURISDICTION AND CONSENT TO SERVICE OF PROCESS BY MAIL
IS MADE FOR THE EXPRESS BENEFIT OF LENDER. FINAL JUDGMENT AGAINST BORROWER IN
ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE CONCLUSIVE, AND MAY BE ENFORCED IN
ANY OTHER JURISDICTION (X) BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT, A
CERTIFIED OR TRUE COPY OF WHICH SHALL BE CONCLUSIVE EVIDENCE OF THE FACT AND OF
THE AMOUNT OF INDEBTEDNESS OR LIABILITY OF BORROWER THEREIN DESCRIBED, OR (Y)
IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE LAWS OF SUCH OTHER
JURISDICTION, PROVIDED, HOWEVER, THAT THE LENDER MAY AT ITS
OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS, AGAINST BORROWER OR
ANY OF ITS ASSETS IN ANY STATE OR FEDERAL COURT OF THE UNITED STATES OR OF ANY
COUNTRY OR PLACE WHERE THE SUBMITTING PARTY OR SUCH ASSETS MAY BE FOUND.


 


6.3           Waiver of Jury Trial. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT THAT BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY
LITIGATION ARISING IN ANY WAY IN CONNECTION WITH THIS NOTE OR THE DEED OF
TRUST, OR ANY OTHER STATEMENTS OR ACTIONS OF THE LENDER. BORROWER ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE LENDER TO DISBURSE THE MONEY
EVIDENCED BY THIS NOTE.


 


6.4           Severability. If any provision of this Note is held to be invalid or unenforceable
by a court of competent jurisdiction, the other provisions of this Note shall
remain in full force and effect, and shall be liberally construed in favor of
Lender.


 


SECTION
7 - NOTICES


 


7.1           Notices. All notices, demands and other communications (“Notice”)
under or concerning this Agreement shall be in writing. Each notice shall be
addressed to the intended recipient at its address set forth in the LLC
Agreement and shall be deemed given on the earliest to occur of (1) the date
when the notice is received by the addressee; (2) the first (1st) Business Day
after the notice is delivered to a recognized overnight courier service, with
arrangements made for payment of charges for next Business Day delivery; or (3)
the third Business Day after the notice is deposited in the United States mail
with postage prepaid, certified mail, return receipt requested.


 


7.2           Any party to this Agreement may change the
address to which notices intended for it are to be directed by means of notice
given to the other party in accordance with this Section 7. Any notice under
the Note and or Deed of Trust which does not specify how notices are to be
given shall be given in accordance with this Section 7.


 


SECTION
8 - MISCELLANEOUS


 


8.1           Costs. If, and as often as, this Note is referred to an attorney for the
collection of any sum payable hereunder, or to defend or enforce any of Lender’s
rights hereunder, or to commence an action, cross-claim, third-party claim or
counterclaim by Lender against Borrower relating to this Note, Borrower agrees
to pay to Lender all costs incurred in connection therewith including
reasonable attorney’s fees (including such fees incurred in appellate,
bankruptcy or insolvency proceedings), with or without the institution of any
action or proceeding, and in addition all costs, disbursements and allowances
provided by law.


 


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8.2           Modification. Neither this Note nor any of the terms hereof may be terminated,
amended, supplemented, waived or modified orally, but only by an instrument in
writing executed by the party against which enforcement of the termination,
amendment, supplement, waiver or modification is sought.


 


8.3           Successors. As used herein, the terms “Borrower” and “Lender” shall be deemed to
include their respective successors and assigns whether by voluntary action of
the parties or by operation of law. All of the rights, privileges and
obligations hereof shall inure to the benefit of and bind such successors and
assigns.


 


8.4           No Waiver. No failure or delay by Lender in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. Without limiting the foregoing, no disbursement by Lender after a
default by Borrower hereunder shall constitute a waiver of any of the Lender’s
remedies established or referred to hereunder or shall obligate Lender to make
any further disbursement. No waiver, consent or approval of any kind by Lender
shall be effective unless (and it shall be effective only to the extent)
expressly set out in a writing signed and delivered by Lender. No notice to or
demand on Borrower in any case shall entitle Borrower to any other notice or
demand in similar or other circumstances, nor shall such notice or demand
constitute a waiver of the rights of Lender to any other or further actions. In
its sole discretion, Lender may, at any time and from time to time, waive any
one or more of the requirements contained herein, but such waiver in any
instance or under any particular circumstances shall not be considered a waiver
of such requirement or requirements in any other instance or under any other
circumstance.


 


8.5           Sole and Absolute Discretion. Any option, consent, approval, discretion or
similar right of Lender set forth in this Note may be exercised by Lender in
its sole and absolute discretion, unless the provisions of this Note
specifically require such option, consent, approval, discretion or similar
right to be exercised in Lender’s reasonable discretion.


 


[Signature follows on next page.]


 


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IN WITNESS WHEREOF, the
undersigned has duly executed and delivered this Note as of the date first set
forth above.


 


 


	
   

  	
  BORROWER

  
	
   

  	
   

  
	
   

  	
  BHFS IV, LLC,

  
	
   

  	
  a Delaware limited liability
  company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
   

  	
  Executive Vice President