Exhibit 10.100


 


ASSUMPTION AGREEMENT


 


THIS ASSUMPTION
AGREEMENT (this “Agreement”)
dated as of the 3rd day of August 2007 (the “Effective Date”),  among FRISCO
SQUARE F1-1, LTD.,  a
Texas limited partnership (“Maker”); BHFS III, LLC,  a Delaware limited liability company (“Borrower”);  and COMPASS BANK,  an Alabama banking corporation (“Lender”).


 


WITNESSETH THAT:


 


WHEREAS, Maker has
executed and delivered to Lender (i) that certain Promissory Note (the “Note”) dated March 8, 2007, payable to
the order of Lender in the original principal sum of $8,889,000.00, with
interest and principal payable as therein, (ii) a Deed of Trust, Security
Agreement, Fixture Filing and Assignment Leases and Rents dated of even date
with the Note from Maker to Lee Q. Vardaman, Trustee, securing the payment of
the Note, covering certain real and personal property described therein,
including without limitation, the property described in Exhibit A
attached hereto and made a part hereof (the “Mortgaged Property”),  recorded
under Clerk’s File No. 20070309000324820 in the Real Property Records of Collin
County, Texas, (the “Deed of Trust”),  and (iii) a Construction Loan Agreement
dated of even date with the Note, executed by and between Maker and Lender (the
“Loan Agreement”),
reference being here made to the Deed of Trust and the record thereof for all
purposes (the Note, Deed of Trust, Loan Agreement, and all other documents
executed by Maker and/or any other party or parties evidencing or securing or
otherwise in connection with the loan evidenced by the Note (the “Loan”) being herein collectively called
the “Loan Documents”);


 


WHEREAS, the
payment and performance of all of the obligations of Maker under the Loan
Documents are guaranteed by James C. Leslie, Cathy R. Sweeney, A. Brant Bryan
and David F. Stringfield (collectively, the “Existing Guarantor”),  pursuant
to that certain Guaranty (the “Existing
Guaranty”) dated of even date with the Note executed by Existing
Guarantor in favor of Lender;


 


WHEREAS, the Loan
Documents provide that the indebtedness evidenced thereby may, at the option of
the holder thereof, be accelerated if Maker or any assignee of Maker sells or
conveys any or all of the Mortgaged Property without the consent of Lender;


 


WHEREAS, Maker
desires to transfer the Mortgaged Property to Borrower;


 


WHEREAS, Lender
has been requested to consent to the conveyance of the Mortgaged Property to
Borrower and Lender is willing so to consent upon compliance with the terms and
provisions of this Agreement; and


 


WHEREAS, Lender is
the owner and holder of the Note;


 


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NOW, THEREFORE,
for and in consideration of the mutual covenants contained herein and for other
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


1.                          Consent
to Transfer.  Lender hereby consents
to the conveyance of the Mortgaged Property to Borrower in accordance with a
deed in a form approved by Lender (the “Deed”),  and waives its option to accelerate the
maturity of the Loan as provided in the Loan Documents, without prejudice to
its rights with respect to any future conveyance of said property or any
interest therein, subject, however, to the performance and satisfaction of the
terms and conditions set forth in this Agreement.


 


2.                          Assumption
of Loan.  Maker hereby transfers,
assigns and delivers to Borrower all of Maker’s rights, titles, and interests
in and to the Loan Documents. Maker hereby binds itself and it successors, to
warrant and forever defend all and singular the Loan Documents unto Borrower
and Borrower’s successors and assigns. Borrower hereby (i) assumes and promises
to pay and perform all of the indebtedness, liabilities, covenants, agreements,
duties and obligations of Maker under the Note and the other Loan Documents,
and (ii) agrees to be bound by all of the terms, conditions and provisions of
the Note and the Loan Documents, as any of the foregoing may be modified as
provided in this Agreement, as if it were the maker thereunder. Notwithstanding
anything to the contrary contained in any of the Loan Documents or this
Agreement, the Loan shall be fully recourse to Borrower, and Borrower shall be
fully and personally liable for the repayment of all outstanding principal,
accrued interest and all other sums outstanding under the Loan Documents and
the performance of all obligations of Maker under the Loan Documents. From and
after the Effective Date, any reference in the Loan Documents to “Borrower”, “Maker”,
“Grantor” or other similar references shall mean and refer to Borrower.


 


3.                          Conditions
to Assumption.  The following are
conditions precedent to Lender’s obligations to consent to the assumption of
the Loan by Borrower:


 


(a)                      Existing
Guaranty.  Existing Guarantor shall
remain liable under the Existing Guaranty for all indebtedness and obligations
of Maker and Borrower under the Loan Documents, and Existing Guarantor shall
not be released from any liability or obligations on account of the
transactions evidenced by this Agreement or the Deed.


 


(b)                     Organizational
Documents.  Borrower shall provide to
Lender current, certified copies of all organizational documents of Borrower
and all appropriate consents or resolutions authorizing the assumption of the
Loan by Borrower, all of which shall be in form and substance acceptable to
Lender. In addition, Borrower shall deliver to Lender such opinions of counsel
as may be required by Lender as to such matters, and further opining that the
Deed, this Agreement and the other Loan Documents are enforceable obligations
of Borrower, as applicable.


 


(c)                      In the event
that Borrower enters into any new property management agreement (a “New Management Agreement”) for the
Mortgaged Property with another


 


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property manager other
than that set forth in the Loan Agreement (a “New Property Manager”),  such
New Property Manager and New Management Agreement shall be subject to the prior
written consent of Lender, which consent shall not be unreasonably withheld. In
such event, the New Property Manager shall also enter into a subordination of
the New Management Agreement on terms and conditions acceptable to Lender
pursuant to which the New Management Agreement shall be made subordinate in all
respects to the Loan Documents.


 


4.                          Outstanding
Balance of Loan.  Maker, Borrower and
Lender hereby acknowledge that the unpaid principal balance of the Note as of
the Effective Date is $1,000.00, with interest paid up to and including July 1,
2007. As of the Effective Date, $8,888,000.00 of the Loan proceeds remain
available for disbursement.


 


5.                          Modifications.
 In addition to the other modifications
referred to herein, the Loan Agreement is hereby modified as of the date of
this Agreement as follows:


 


(a)                    Section 1.5  is hereby amended in its entirety to
read as follows: “Borrower’s Member”  means Behringer Harvard Frisco Square LP,
a Delaware limited partnership.


 


(b)                   All references
to “Borrower’s General Partner” in the Loan Documents shall be replaced with “Borrower’s
Member”.


 


(c)                    Section 1.6  is hereby amended to read as follows: “Change in Control” means the occurrence of
any one or more of the following: (i) Borrower’s Member shall cease to own,
directly, all of the member interest in Borrower or (ii) Borrower’s Member
shall cease to be controlled, directly or indirectly, by either (x) Guarantor
and/or (y) Behringer Harvard Opportunity REIT I, Inc., a Maryland corporation.


 


(d)                   Section 1.8 is
hereby amended to read as follows: “Completion
Deadline”  means May 1,
2008.


 


(e)                    Section
4.33(a) is hereby modified to replace “ninety (90) days” with “one hundred
twenty (120) days”.


 


6.                          Waiver
of Conditions.  Lender acknowledges
that the conditions set forth in Section 6.8 of the Loan Agreement
regarding the acquisition of the Parking Land, and the execution and recording
of the Parking Agreement have not occurred within 90 days of the date of the
Loan Agreement and there currently exists a default under the Exchange
Agreement with respect to the Closing Date thereunder, and that such default
constitutes an Event of Default under Section 6.9 and Section 8.1(v) of the
Loan Agreement. Lender hereby agrees that such failure (and the failure to
satisfy the Additional Funding Conditions set forth in Section 6.9 of
the Loan Agreement) shall not be an Event of Default under the Loan Agreement
or other Loan Documents so long as the Parking Owner Affiliate closes the
transactions contemplated under the Exchange Agreement and satisfies all of the
Additional Funding Conditions within ninety (90) days of the date of this
Agreement. In the event that Borrower does not satisfy all of the


 


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Additional
Funding Conditions within ninety (90) days of the date of this Agreement, then
Lender shall have the right to declare an Event of Default under the Loan
Agreement and exercise any and all remedies provided to Lender under the Loan
Agreement and other Loan Documents or at law or equity.


 


7.                          Release of Maker.  At
such time as (i) the Deed has been executed by Maker and recorded in the Real
Property Records of Collin County, Texas, (ii) Borrower has executed all
documents required by Lender under this Agreement and all other conditions to
the assumption of the Loan in Section 3 above have been satisfied and
(iii) provided that no default is then existing under this Agreement or any of
the Loan Documents (all of the foregoing are herein collectively called the “Release Conditions”),  Lender agrees that Maker shall be released
and discharged from, and shall not be responsible to Lender, for the discharge
or performance of the Maker’s and Borrower’s obligations (including any
obligations to make any payment or perform any duty or obligation) pursuant to
or in connection with the Note or any of the Loan Documents; provided, however,
that the foregoing shall not affect, diminish, release or impair any of Maker’s
obligations under any indemnification provisions contained in the Loan
Documents for any matters occurring or existing prior to the Effective Date, it
being agreed that Maker shall continue to remain liable for such
indemnification obligations from and after the Effective Date.


 


8.                          Representations and Warranties of Borrower.  Borrower
hereby represents and warrants to Lender that (a) upon the consummation of the
transactions contemplated by this Agreement and the Deed (including the
recordation of the Deed), Borrower will be the sole legal and equitable owner
of the Mortgaged Property; (b) such Borrower is duly organized and legally
existing under the laws of the State of Delaware, and is duly qualified to
transaction business in the State of Texas; (c) the execution and delivery of,
and performance under this Agreement are within such Borrower’s power and
authority without the joinder or consent of any other party and have been duly
authorized by all requisite action and are not in contravention of the powers
of such Borrower’s partnership agreement or other organizational documents; (d)
this Agreement constitutes the legal, valid and binding obligation of Borrower
enforceable in accordance with its terms; (e) the execution and delivery of
this Agreement by Borrower does not contravene, result in a breach of or
constitute a default under any mortgage, loan agreement, indenture or other
contract, agreement or undertaking to which such Borrower is a party or by
which such Borrower or any of its properties may be bound (nor would such
execution and delivery constitute such a default with the passage of time or
the giving of notice or both) and do not violate or contravene any law, order,
decree, rule or regulation to which Borrower is subject; and (f) to the best of
Borrower’s knowledge, there exists no uncured default under the Note or any of
the Loan Documents, except as disclosed herein. Borrower agrees to indemnify
and hold Lender harmless against any loss, claim, damage, liability or expense
(including, without limitation, reasonable attorneys’ fees) incurred as a
result of any representation or warranty made by it herein proving to be untrue
in any material respect.


 


9.                          Representations and Warranties of Maker.  Maker
hereby represents and warrants to Lender that (a) as of the Effective Date and
conveyance of the Mortgaged Property to Borrower, Maker is the sole legal and
equitable owner of the Mortgaged Property; (b) Maker is a limited partnership
duly organized and legally existing under the laws of the State of Texas; (c)


 


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the
execution and delivery of, and performance under the Deed and this Agreement
are within Maker’s power and authority without the joinder or consent of any
other party and have been duly authorized by all requisite action and are not
in contravention of law or the powers of Maker’s limited partnership agreement
or certificate of limited partnership; (d) the Deed and this Agreement
constitute the legal, valid and binding obligations of Maker enforceable in
accordance with their respective terms; (e) the execution and delivery of the
Deed and this Agreement by Maker do not contravene, result in a breach of or
constitute a default under any mortgage, deed of trust, loan agreement,
indenture or other contract, agreement or undertaking to which Maker is a party
or by which Maker or any of its properties may be bound (nor would such
execution and delivery constitute such a default with the passage of time or
the giving of notice or both) and do not violate or contravene any law, order,
decree, rule or regulation to which Maker is subject; and (f) to the best of
Maker’s knowledge, there exists no uncured default under the Note or any of the
Loan Documents, except as disclosed herein. Maker agrees to indemnify and hold
Lender harmless against any loss, claim, damage, liability or expense
(including, without limitation, reasonable attorneys’ fees) incurred as a result
of any representation or warranty made by it herein proving to be untrue in any
material respect.


 


10.                    Representations and Warranties of Existing
Guarantor.  Existing Guarantor hereby represents and
warrants to Lender that (a) the Existing Guaranty constitutes the legal, valid
and binding obligations of Existing Guarantor enforceable in accordance with
its terms, and Existing Guarantor’s liability is not affected, diminished or
impaired on account of any of the transactions evidenced or contemplated by the
Deed or this Agreement; (b) the execution and delivery of this Agreement by
Existing Guarantor does not contravene, result in a breach of or constitute a
default under any mortgage, loan agreement, indenture or other contract,
agreement or undertaking to which Existing Guarantor is a party or by which
Existing Guarantor or any of its properties may be bound (nor would such
execution and delivery constitute such a default with the passage of time or
the giving of notice or both) and do not violate or contravene any law, order,
decree, rule or regulation to which Existing Guarantor is subject; and (c) to
the best of Existing Guarantor’s knowledge, there exists no uncured default
under the Existing Guaranty or any of the Loan Documents, except as disclosed
herein. Existing Guarantor agrees to indemnify and hold Lender harmless against
any loss, claim, damage, liability or expense (including, without limitation,
reasonable attorneys’ fees) incurred as a result of any representation or
warranty made by it herein proving to be untrue in any material respect.


 


11.                    Representations and Warranties of Lender.  Lender
hereby represents to Borrower that: (a) Lender is the legal and equitable owner
of the Note and the other Loan Documents; (b) the maturity of the Note has not
been accelerated and, to the best of Lender’s knowledge, except as disclosed in
this Agreement (and subject to the forbearance with respect to such Event of
Default set forth in Section 6 of this Agreement), no Event of Default
currently exists, nor, to the best of Lender’s knowledge, does any circumstance
currently exist which, with the giving of notice or the passage of time, or
both, would constitute an Event of Default.


 


12.                    Further Assurances.  Borrower,
Maker or Existing Guarantor, as appropriate, upon request from Lender, agree to
execute such other and further documents as may be necessary or appropriate to
consummate the transactions contemplated herein or to perfect the liens and
security interests intended to secure the payment of the loan evidenced by the
Note.


 


5

















 


Without
limiting the foregoing, Borrower and Maker each agree to provide such
documentation to Lender as Lender may reasonably require to evidence the
existence and good standing of Borrower and Maker, as applicable, and the
authority of Borrower and Maker to enter into the transactions evidenced by
this Agreement.


 


13.                    Default.  If Borrower or Maker fails to
keep or perform any of the covenants or agreements contained herein and such
default is not cured within the grace or cure periods provided in the Loan
Documents, or if any statement, representation or warranty contained herein by
Maker, Existing Guarantor or Borrower is false, misleading or erroneous in any
material respect, it shall constitute a default under the Loan Documents and
Lender shall be entitled at its option to exercise any and all of the rights
and remedies granted pursuant to the Loan Documents or which Lender may
otherwise be entitled, whether at law or in equity.


 


14.                    Endorsement to Mortgagee Title Policy.  Contemporaneously
with the execution and delivery hereof, Borrower shall, at its sole cost and
expense, obtain and deliver to Lender an Endorsement of the Mortgagee Title
Policy insuring the lien of the Deed of Trust, under the applicable title
insurance rules and regulations, and otherwise reasonably acceptable to Lender,
stating that the company issuing said Mortgagee Title Policy will not claim
that policy coverage has terminated or that policy coverage has been reduced,
solely by reason of the execution of this Agreement. Borrower shall also
deliver to Lender a title search and UCC search within fifteen (15) days after
the recording of the Deed showing no change in Lender’s first lien position
with respect to the Mortgaged Property and reflecting no other liens or
encumbrances not previously approved by Lender.


 


15.                    Ratification of Loan Documents.  Except
as provided herein, the terms and provisions of the Loan Documents shall remain
unchanged and shall remain in full force and effect. Any modification herein of
the Loan Documents shall in no way affect the security of the Loan Documents
for the payment of the Note. The promissory note described in the Loan
Documents as the note secured thereby shall hereafter mean the Note as modified
by this Agreement. The Loan Documents as modified and amended hereby are hereby
ratified and confirmed in all respects. All liens, security interests,
mortgages and assignments granted or created by or existing under the Loan Documents
remain unchanged and continue, unabated, in full force and effect, to secure
Maker’s and Borrower’s obligation to repay the Note.


 


16.                    No Offsets or Claims.  Borrower,
Maker and Existing Guarantor each hereby acknowledges that the liens, security
interests and assignments created and evidenced by the Loan Documents are valid
and subsisting and further acknowledges and agrees that as of the Effective
Date, there are no offsets, claims or defenses to the Loan Documents.


 


17.                    Merger.  This Agreement supersedes and
merges all prior and contemporaneous promises, representations and agreements
with respect to the assumption contemplated hereby. No modification of this
Agreement or the Loan Documents, or any waiver of rights under any of the
foregoing, shall be effective unless made by supplemental agreement, in
writing, executed by Lender and Borrower. This Agreement may not in any way be
explained or supplemented by a prior, existing or future course of dealings
between the parties or by any prior, existing, or future performance between
the parties pursuant to this Agreement or otherwise.


 


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18.                    Notices.
 Any notice or communication required or
permitted hereunder or under the Loan Document shall be given in writing, sent
by (a) personal delivery, or (b) expedited delivery service with proof of
delivery, or (c) United States mail, postage prepaid, registered or certified
mail, addressed as follows:


 


	
   

  	
  To Maker:

  	
  Frisco Square F1-1, Ltd.

  
	
   

  	
   

  	
  16250 Dallas Parkway, Suite 102

  
	
   

  	
   

  	
  Dallas, Texas 75248

  
	
   

  	
   

  	
  Attn:  Cathy
  Sweeney

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Winstead

  
	
   

  	
   

  	
  5400 Renaissance Tower

  
	
   

  	
   

  	
  1201 Elm Street

  
	
   

  	
   

  	
  Dallas, Texas 75270

  
	
   

  	
   

  	
  Attention:  William
  R. Weinberg

  
	
   

  	
   

  	
   

  
	
   

  	
  To Borrower:

  	
  BHFS III, LLC

  
	
   

  	
   

  	
  16250 Dallas Parkway, Suite 102

  
	
   

  	
   

  	
  Dallas, Texas 75248

  
	
   

  	
   

  	
  Attn:  Cathy
  Sweeney

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Behringer Harvard Opportunity REIT I, Inc.

  
	
   

  	
   

  	
  15601 Dallas Parkway, Suite 600

  
	
   

  	
   

  	
  Addison, Texas 75001

  
	
   

  	
   

  	
  Attention:  Chief
  Legal Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  With a copy to:

  	
  Winstead

  
	
   

  	
   

  	
  5400 Renaissance Tower

  
	
   

  	
   

  	
  1201 Elm Street

  
	
   

  	
   

  	
  Dallas, Texas 75270

  
	
   

  	
   

  	
  Attention:  William
  R. Weinberg

  
	
   

  	
   

  	
   

  
	
   

  	
  To Lender:

  	
  Compass Bank

  
	
   

  	
   

  	
  8080 N. Central Expressway, Suite 370

  
	
   

  	
   

  	
  Dallas, Texas 75206

  
	
   

  	
   

  	
  Attention: Commercial Real Estate,

  
	
   

  	
   

  	
   John Reichenbach

  
	
   

  	
   

  	
   

  
	
   

  	
  With copy to:

  	
  Thompson & Knight LLP

  
	
   

  	
   

  	
  1700 Pacific Avenue, Suite 3300

  
	
   

  	
   

  	
  Dallas, Texas 75201

  
	
   

  	
   

  	
  Attention:  Mark M. Sloan

  



 


or to such other address
or to the attention of such other person as hereafter shall be designated in
writing by the applicable party sent in accordance herewith. Any such notice or
communication


 


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shall be deemed to have
been given either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein; provided that, service of a notice required by
Tex. Property Code §51.002 shall be considered complete when the requirements
of that statute are met.


 


19.                    Opinion of Counsel.  Upon
the request of Lender, Borrower shall deliver to Lender, in form and substance
satisfactory to Lender, an opinion of counsel to Borrower, opining to such
matters as required by Lender, including without limitation, (i) the existence
and authority of Borrower to enter into the transactions contemplated by this
Agreement, (ii) the due execution and delivery of this Agreement and other
documents in connection herewith, and (iii) the Loan Documents, as modified and
assumed by this Agreement, are valid and binding upon Borrower and enforceable
in accordance with its terms.


 


20.                    Lender’s Expenses.  Contemporaneously with the execution and
delivery hereof, Borrower and Maker shall pay, or cause to be paid, all costs
and expenses incident to the preparation hereof and the consummation of the
transactions specified herein, including, without limitation, title insurance
policy endorsement charges, fees and expenses of legal counsel to Lender and
recording fees.


 


21.                    Release of Lender.  Borrower,
Maker and Existing Guarantor each hereby releases, remises, acquits and forever
discharges Lender, together with its employees, agents, representatives,
consultants, attorneys, fiduciaries, servants, officers, directors, partners,
predecessors, successors and assigns, subsidiary corporations, parent
corporations, and related corporate divisions (all of the foregoing hereinafter
called the “Released Parties”),  from any and all actions and causes of
action, judgments, executions, suits, debts, claims, demands, liabilities,
obligations, damages and expenses of any and every character, known or unknown,
direct and/or indirect, at law or in equity, of whatsoever kind or nature, for
or because of any matter or things done, omitted or suffered to be done by any
of the Released Parties prior to and including the date hereof, and in any way
directly or indirectly arising out of or in any way connected to this Agreement
or the Loan Documents, or any of the transactions associated therewith, or the
Mortgaged Property, including specifically, but not limited to, claims of
usury.


 


22.                    Counterparts.  This Agreement may be executed
in any number of counterparts with the same effect as if all parties hereto had
signed the same document. All such counterparts shall be construed together and
shall constitute one instrument, but in making proof hereof it shall only be
necessary to produce one such counterpart.


 


23.                    Severability of Provisions.  If
any covenant, condition, or provision herein contained is held to be invalid by
final judgment of any court of competent jurisdiction, the invalidity of such
covenant, condition, or provision shall not in any way affect any other
covenant, condition or provision herein contained.


 


24.                    Time of the Essence.  It is
expressly agreed by the parties hereto that time is of the essence with respect
to every provision contained in this Agreement.


 


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25.                    Representation
by Counsel.  The parties acknowledge
and confirm that each of their respective attorneys have participated jointly in
the review and revision of this Agreement and that it has not been written
solely by counsel for one party. The parties hereto, therefore, stipulate and
agree that the rule of construction to the effect that any ambiguities are to
or may be resolved against the drafting party shall not be employed in the
interpretation of this Agreement to favor either party against the other.


 


26.                    Governing
Law.  This Agreement and the rights
and duties of the parties hereunder shall be governed for all purposes by the law
of the State of Texas (without giving effect to Texas’ principles of conflicts
of law) and the law of the United States applicable to transactions within said
State.


 


27.                    Successors
and Assigns.  The terms and
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their successors and assigns.


 


28.                    Notice and
Agreement.  Borrower, Maker, Existing
Guarantor and Lender hereby take notice of and agree to the following:


 


(a)                    PURSUANT TO SUBSECTION 26.02(b) OF THE TEXAS BUSINESS
AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED THEREIN
EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING
AND SIGNED BY THE PARTY TO BE BOUND OR BY THAT PARTY’S AUTHORIZED
REPRESENTATIVE.


 


(b)                   PURSUANT TO SUBSECTION 26.02(c) OF THE TEXAS BUSINESS
AND COMMERCE CODE, THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE LOAN
DOCUMENTS SHALL BE DETERMINED SOLELY FROM THE LOAN DOCUMENTS, AND ANY PRIOR
ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO THE LOAN
DOCUMENTS.


 


(c)                    THE LOAN DOCUMENTS AND THIS AGREEMENT REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES
THERETO. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.


 


29.                    Representations
Regarding Loan.  Maker represents to
Borrower and Lender that to Maker’s current, actual knowledge, there are no
defaults existing by Lender or Maker under any of the Loan Documents.


 


 


[SIGNATURE PAGES FOLLOW]


 


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IN WITNESS
WHEREOF, this Agreement is executed on the respective dates of acknowledgement
below but is effective as of the Effective Date.


 


	
   

  	
   

  	
  MAKER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  FRISCO SQUARE F1-1, LTD.,
 a Texas limited partnership

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Fairways
  FS F1-1, LLC, a Texas limited

  liability company, its General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/
  James Leslie

  	
   

  
	
   

  	
   

  	
  Name:

  	
   James
  Leslie

  	
   

  
	
   

  	
   

  	
  Title:

  	
   Mgr
  of GP

  	
   

  
										



 


 


[Signature Page]


 

















 


	
   

  	
   

  	
  BORROWER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  BHFS III, LLC,
 a Delaware limited liability company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Gerald J. Reihsen, III

  	
   

  
	
   

  	
   

  	
   

  	
  Gerald
  J. Reihsen, III,

  
	
   

  	
   

  	
   

  	
  Executive
  Vice President- Corporate

  
	
   

  	
   

  	
   

  	
  Development
  & Legal and Secretary

  
							



 


 


[Signature Page]


 

















 


	
   

  	
   

  	
  LENDER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COMPASS
  BANK,

  an Alabama banking corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Tyler
  Malik, Assistant Vice President

  
							



 


 


[Signature Page]


 

















 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument was acknowledged before me on the 1st day of
August 2007, by James C. Leslie, Manager of Fairways FS F1-1, LLC, a Texas
limited liability company, general partner of Frisco Square F1-1, Ltd., a Texas
limited partnership, on behalf of each said entity.


 


	
   

  	
   

  	
   /s/
  Carol S. Martin

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Carol
  S. Martin

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  .

  	
   

  	
   

  
				



 


 


	
  STATE OF TEXAS

  	
  )

  
	
   

  	
  )

  
	
  COUNTY OF DALLAS

  	
  )

  



 


This instrument was acknowledged before me on the 2nd day of
August 2007, by Gerald J. Reihsen, III, Executive Vice President- Corporate
Development & Legal and Secretary of BHFS III, LLC, a Delaware limited
liability company, on behalf of each said entity.


 


	
   

  	
   

  	
   /s/
  Catherine E. Mea

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Catherine
  E. Mea

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  7/26/08

  	
   

  	
   

  	
   

  
				



 


 


[Acknowledgments]


 

















 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument
was acknowledged before me on the 3rd day of August 2007, by Tyler
Malik, Assistant Vice President of Compass Bank, an Alabama banking
corporation, on behalf of said banking corporation.


 


	
   

  	
   

  	
   /s/ Suzanne C.
  Collie

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Suzanne C. Collie

  
	
   

  	
   

  	
  Printed
  Name of Notary 

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  .

  	
   

  	
   

  
				



 


 


[Acknowledgments]


 

















 


Consent of Existing
Guarantor:


 


JAMES
C. LESLIE, CATHY R. SWEENEY, A. BRANT BRYAN and DAVID F. STRINGFIELD (the “Existing Guarantor”),  the guarantor under the Guaranty dated of
even date with the Note in favor of Lender (the “Existing Guaranty”),  hereby
consents to and joins in the above Assumption Agreement (including without
limitation, all provisions specifically applicable to Existing Guarantor) and
hereby declares to and agrees with Lender that all of the obligations of the
Existing Guarantor under the Existing Guaranty are and shall be unaffected by
said transactions and that the Existing Guaranty is hereby ratified and
confirmed in all respects.


 


Executed on the
respective dates of acknowledgment below but effective as of August 3, 2007.


 


 


	
   

  	
   

  	
   /s/ James C.
  Leslie

  
	
   

  	
   

  	
  JAMES
  C. LESLIE

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ Cathy R.
  Sweeney

  
	
   

  	
   

  	
  CATHY
  R. SWEENEY

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ A. Brant
  Bryan

  
	
   

  	
   

  	
  A.
  BRANT BRYAN

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   /s/ David F.
  Stringfield

  
	
   

  	
   

  	
  DAVID
  F. STRINGFIELD

  



 


 


[Signature Page]


 

















 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument
was acknowledged before me on the 1st day of August 2007, by JAMES C. LESLIE.


 


	
   

  	
   

  	
   /s/
  Carol S. Martin

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Carol
  S. Martin

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
				



 


 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument was acknowledged before me on the 1st day of
August 2007, by CATHY R. SWEENEY.


 


	
   

  	
   

  	
   /s/
  Carol S. Martin

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Carol
  S. Martin

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  .

  	
   

  	
   

  
				



 


 


[Acknowledgments]


 

















 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument
was acknowledged before me on the 1st day of August 2007, by A. BRANT BRYAN.


 


	
   

  	
   

  	
   /s/
  Carol S. Martin

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Carol S. Martin

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  .

  	
   

  	
   

  
				



 


 


	
  STATE OF TEXAS

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY OF DALLAS

  	
  §

  	
   

  



 


This instrument
was acknowledged before me on the 1st day of August 2007, by DAVID F. STRINGFIELD.


 


	
   

  	
   

  	
   /s/ Carol S. Martin

  
	
   

  	
   

  	
  Notary
  Public, State of Texas

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Carol
  S. Martin

  
	
   

  	
   

  	
  Printed
  Name of Notary

  
	
   

  	
   

  	
   

  
	
  My
  Commission Expires:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  .

  	
   

  	
   

  
				



 


 


[Acknowledgments]


 

















 


EXHIBIT A 

Legal Description


 


Lot 1, Block F1 of FRISCO
SQUARE PHASE 2, an addition to the City of Frisco, as recorded in Cabinet P,
Page 724, Deed Records, Collin County, Texas.


 


A-1