Exhibit 10.8


 


PROMISSORY NOTE


 


	$31,000,000.00	December 20, 2012


 


FOR VALUE RECEIVED,
the undersigned, BEHRINGER HARVARD MOCKINGBIRD COMMONS, LLC, a Delaware limited liability company ("Borrower"),
having an address at 15601 Dallas Parkway, Suite 600, Addison, Texas 75001-6026, Attention: Chief Legal Officer, promises to pay
to the order of GREAT AMERICAN LIFE INSURANCE COMPANY, an Ohio corporation (together with its successors and assigns, "Lender"),
c/o American Real Estate Capital, Two Alhambra Plaza, Suite 1280, Coral Gables, Florida 33134, or at such other place as Lender
may designate to Borrower in writing from time to time, the principal sum of THIRTY ONE MILLION and 00/100 DOLLARS ($31,000,000.00)
(the "Loan") together with interest on so much thereof as is from time to time outstanding and unpaid, from the
date of the advance of the principal evidenced hereby, at the Note Rate (as hereinafter defined), in lawful money of the United
States of America, which shall at the time of payment be legal tender in payment of all debts and dues, public and private.


 


DEFINITIONS


 


"Applicant"
shall mean the person or entity who or which, as applicable, applied for the Loan.


 


"Business Day"
shall mean any day other than a Saturday, a Sunday, a legal holiday or other day on which commercial banks in the state where the
Security Property is located are authorized or required to close. All references in this Note to a "day" or "date"
shall be to a calendar day unless specifically referenced as a Business Day.


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended from time to time, or any successor statute.


 


"Default Rate"
or "Default Interest Rate" shall mean a rate per annum equal to six percent (6.0%) plus the Note Rate,
or if such increased rate of interest may not be charged or collected under applicable law, then at the maximum rate of interest,
which may be charged or collected from Borrower under applicable law.


 


"Event of Default"
is defined in Section 2.01, below, and as defined in the Security Instrument.


 


"First Payment
Date" shall mean February 1, 2013.


 


"Guarantor"
shall mean any guarantor or indemnitor in respect of all or any portion of the Loan, the obligations under the Loan Documents or
any matters relating to the Loan or Security Property.


 


"Late Charge"
shall mean an amount equal to the lesser of five percent (5.0%) of the amount of any payment not timely paid under the Loan Documents
or the maximum amount, if any, which may be charged or collected from Borrower under applicable law. Such Late Charge is charged
to offset Lender’s expenses in servicing late payments and shall not be deemed a penalty.


 


"Loan"
shall mean the indebtedness evidenced by this Note.


 


“Loan Commitment
Fee” shall mean $310,000.00.


 




    	 



    	 



    

 


"Loan Documents"
shall mean the Security Instrument, together with this Note and all other documents now or hereafter evidencing, securing, guarantying,
modifying or otherwise relating to the indebtedness evidenced hereby, as amended or modified from time to time. "Loan Document"
shall refer to any one of such documents.


 


“Lock-out
Period” shall mean the period of time commencing on the date hereof to and including the date which is three hundred
sixty five (365) days from the date of this Note.


 


"Maturity Date"
shall mean December 19, 2015.


 


"Note Rate"
shall mean a rate of 5.75% per annum.


 


"Payment Date"
shall mean for each and every calendar month during the term of this Note, the 1st day of each such month; provided,
however, that if the 1st day of a given month shall not be a Business Day, then the Payment Date for such month shall
be the next Business Day to occur after the 1st day of such month (except that there shall be no Payment Date for the
month of January, 2013).


 


"Payment Differential"
shall mean an amount equal to (i) the Note Rate less the Reinvestment Yield, divided by (ii) 12 and multiplied by (iii) the principal
sum outstanding under this Note after application of the constant monthly payment due under this Note on the date of such prepayment,
provided that the Payment Differential shall in no event be less than zero.


 


“Prepayment
Premium” shall mean (A) commencing with the 13th month of the Loan through and including the 18th
month of the Loan, an amount equal to three percent (3%) of the outstanding principal balance, (B) commencing with the 19th
month of the Loan through and including the 24th month of the Loan, an amount equal to two percent (2%) of the outstanding
principal balance, (C) commencing with the 25th month of the Loan through and including the 30th month of
the Loan, an amount equal to one percent (1%) of the outstanding principal balance, (D) commencing with the 31st month
of the Loan through and including the 36th month of the Loan, then open for prepayment at par (i.e. no Prepayment Premium
will be due).


 


"Rating Agency(ies)"
shall mean the nationally recognized statistical rating organizations that provide, or Lender determines may provide, a rating
on any certificates issued in connection with a securitization of the Loan.


 


"Reinvestment
Yield" shall mean an amount equal to the yield on the U.S. Treasury issue (primary issue) with a maturity date closest
to the Maturity Date, with such yield being based on the bid price for such issue as published in the Wall Street Journal
on the date that is fourteen (14) days prior to the date of such prepayment set forth in the notice of prepayment (or, if such
bid price is not published on that date, the next preceding date on which such bid price is so published) and converted to a monthly
compounded nominal yield.


 


“REMIC”
shall mean a real estate mortgage investment conduit within the meaning of Section 860D of the Code.


 


"Secondary
Market Transaction" shall mean a transaction contemplated under Section 3.08 hereof and as further
defined in the Security Instrument.


 


"Security Instrument"
shall mean that certain Deed of Trust, Fixture Filing, Assignment of Rents and Security Agreement (as amended, consolidated, modified,
severed or spread from time to time) from Borrower to Lender, dated on or about the date hereof.


 




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"Security Property"
shall mean all property (whether real or personal), rights, estates and interests, including, but not limited to, the real
property encumbered by the Security Instrument, and any other property now or at any time hereafter securing the payment of this
Note and/or the other obligations of Borrower under the Loan Documents.


 


“Trust”
shall mean the REMIC that may hold this Note.


 


“Yield Maintenance
Period” shall mean the period of time commencing on the date immediately following the date on which the Lock-out Period
expires to and including the date which is six (6) months prior to the Maturity Date.


 


ARTICLE
I

TERMS AND CONDITIONS


 


1.01         Payment
of Principal and Interest; Loan Commitment Fee.


 


(a)          Computation
of Interest. Interest hereunder shall accrue and be charged daily for the actual number of days elapsed, but calculated
on the basis of a 360-day year. Interest shall accrue from the date on which funds are advanced (regardless of the time of day
such advance is made) through and including the day on which funds are credited pursuant to Section 1.01(b) hereof. The interest
accrual period with respect to each payment due on each Payment Date shall be from and after the first (1st) day of the calendar
month immediately preceding such Payment Date.


 


(b)          Amortization;
Payment Schedule. With respect to the first eighteen (18) months of the Loan, interest only shall be payable, in arrears,
in consecutive monthly installments commencing on the First Payment Date and through and including the 17th Payment
Date. Thereafter, principal and interest shall be due and payable, in arrears, in consecutive monthly installments on each and
every Payment Date based upon the outstanding principal balance of the Loan amortized over a thirty (30) year period with an assumed
annual interest rate of five and three-quarters percent (5.75%) as computed pursuant to Section 1.01(a) above, due on the Payment
Date of each calendar month thereafter until repayment in full of this Note. On the Maturity Date the entire outstanding principal
balance hereof, together with all accrued but unpaid interest thereon, and all sums due hereunder shall be due and payable and
shall be paid in full.


 


(c)          Application
of Payments. Except as otherwise provided in this Note, so long as no Event of Default exists, each payment made
hereunder shall be applied first, to any amounts (other than principal) hereafter advanced by Lender hereunder or under any other
Loan Document; second, to any late fees and other amounts payable to Lender; third, to the payment of accrued interest and last
to reduction of principal. During the occurrence and continuance of an Event of Default, payments may be applied to the amounts
due and payable under the Loan Documents in such order, manner and time as Lender may elect, in its sole and absolute discretion.
All payments must be received on or before 2 P.M., EDT or EST, as the case may be, on any Business Day to be deemed received
as of such Business Day; otherwise, the payment shall be deemed received as of the next Business Day.


 


(d)          Payment
of Short Interest. If the advance of the principal amount evidenced by this Note is made on a date after the 1st
day of a calendar month, then Borrower shall pay to Lender contemporaneously with the execution hereof interest at the Note Rate
for a period from the date hereof through and including the last day of that calendar month.


 




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(e)          Extension
Option. Borrower shall have two (2) options to extend (each an "Extension Option") the Maturity Date for one
(1) year each (each an "Option Period") by providing Lender with written notice of its election to exercise each such
Extension Option not later than 5:00 p.m. EST on the day that is sixty (60) days prior to the then Maturity Date; provided that,
on the date Borrower exercises each such Extension Option, (i) and on the date immediately prior to the commencement of each such
Option Period, an Event of Default does not exist (which has not been waived by Lender) and no event shall have occurred or failed
to occur which with the passage of time, the giving of notice, or both, will result in an Event of Default; (ii) the Property shall
have achieved for the trailing twelve (12) months immediately prior to Borrower’s election to exercise each such Extension
Option, a Debt Service Coverage Ratio (as defined in the Security Instrument) (as determined by Mortgagee) of not less than 1.30x;
and (iii) Borrower pays to Lender simultaneously with the exercise of each such Extension Option, an extension fee equal to one-half
percent (0.5%) of the then outstanding principal balance of the Loan with respect to the first Extension Option, and an extension
fee equal to one percent (1%) of the then outstanding principal balance of the Loan with respect the second Extension Option. The
Note Rate shall continue to be five and three-quarters percent (5.75%) per annum for each Option Period. During each Option Period,
Borrower shall continue to pay Lender monthly installments of principal and interest as provided in this Section 1.01 and 1.02,
and on the Maturity Date, as extended hereby, the entire outstanding principal balance hereof, together with all accrued but unpaid
interest thereon, and all sums due hereunder and under the Loan Documents shall be due and payable and shall be paid in full.


 


(f)          Loan
Commitment Fee. Simultaneously with the closing of the Loan, Borrower shall pay the Loan Commitment Fee.


 


1.02         Prepayment.


 


(a)          Voluntary
Prepayment. Except as otherwise expressly provided in this Note, this Note may not be prepaid in whole or in part. At any
time after the expiration of the Lock-out Period, this Note may be prepaid in whole (but not in part) provided that
(i) written notice of such prepayment is received by Lender not more than sixty (60) days and not less than thirty (30) days prior
to the date of such prepayment, (ii) such prepayment is accompanied by all accrued but unpaid interest hereunder and all other
sums due hereunder and under the other Loan Documents, (iii) such prepayment (x) is received by Lender on a Payment Date, or (y)
if not received on a Payment Date, is accompanied by a payment of interest, calculated at the Note Rate, on the amount prepaid,
based on the number of days from the date such prepayment is received through the next Payment Date, and (iv) if such prepayment
occurs during the Yield Maintenance Period, then, Lender is paid the Prepayment Premium. If, prior to the expiration of the Lock-out
Period, payment of all or any part of the Loan is tendered by Borrower or otherwise recovered by Lender (including through application
of any Reserve Funds) for any reason, such tender or recovery shall be deemed a voluntary prepayment in violation of this Section
1.02(a) and constitute an Event of Default and Borrower shall pay to Lender, in addition to such prepayment, an amount equal to
the Prepayment Premium due immediately after the Lock-out Period, plus the greater of (i) three (3) percent of the principal amount
being prepaid, or (ii) the present value of a series of payments each equal to the Payment Differential and payable on each Payment
Date over the remaining original term of this Note through and including the Maturity Date, discounted at the Reinvestment Yield
for the number of months remaining as of the date of such prepayment to each such Payment Date and the Maturity Date. Nothing contained
in this Section 1.02(a) or otherwise in this Note shall obligate Lender to accept such tender or make such recovery
during the Lock-out Period, which Lender may or may not elect to do in its sole and absolute discretion.


 


(b)          Involuntary
Prepayment. Upon Lender's acceleration of the indebtedness evidenced hereby (irrespective of whether foreclosure proceedings
have been commenced), Borrower shall pay Lender, in addition to all
accrued but unpaid interest hereunder and all other sums due hereunder and under the other Loan Documents: (i) if such occurs during
the Lock-Out Period, an amount equal to the Prepayment Premium due immediately after the Lock-out Period, plus the greater of (1)
three (3) percent of the principal amount being prepaid, or (2) the present value of a series of payments each equal to the Payment
Differential and payable on each Payment Date over the remaining original term of this Note through and including the Maturity
Date, discounted at the Reinvestment Yield for the number of months remaining as of the date of such prepayment to each such Payment
Date and the Maturity Date; or (ii) if such occurs after the Lock-Out Period, the applicable Prepayment Premium. Prepayments of
this Note shall be permitted, without the imposition of the Prepayment Premium or other prepayment fee, only in connection with
Lender's application of insurance or condemnation proceeds on account of the Loan in accordance with the terms and provisions of
the Security Instrument; provided however, if an Event of Default shall have occurred and be continuing at the time of the related
casualty or condemnation, in addition to applying such proceeds as provided in the Security Instrument, Borrower shall pay to Lender
the applicable Prepayment Premium (plus three percent (3%), if applicable) as set forth above.


 




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(c)          Tender
of Prepayment; Calculation of Prepayment Premium and Other Fees and General Provisions. Without limiting any other provision
of this Note, no tender of a prepayment of this Note with respect to which a Prepayment Premium and/or other amount is due shall
be effective unless such prepayment is accompanied by such Prepayment Premium and all other amounts, if any, due hereunder. In
the event that any Prepayment Premium or other prepayment fee or premium or other amount is due hereunder, Lender shall deliver
to Borrower a statement setting forth the amount and determination thereof, and, provided that Lender shall have in good faith
applied the applicable formulae described herein, Borrower shall not have the right to challenge the calculation or the method
of calculation set forth in any such statement in the absence of manifest error. Lender shall not be obligated or required to have
actually reinvested the prepaid principal balance as a condition to receiving the Prepayment Premium. No principal amount repaid
may be reborrowed. Prepayments shall be applied first to the final payment due under this Note and thereafter to installments due
under this Note in inverse order of their due date. No prepayment shall reduce the amount due on each Payment Date hereunder. No
notice of prepayment by Borrower shall be required in connection with an application of insurance or condemnation proceeds.


 


(d)          Security.
The indebtedness evidenced by this Note and the obligations created hereby are secured by, among other things, the Security Instrument.
All of the terms and provisions of the Loan Documents are incorporated herein by reference.


 


ARTICLE
II

DEFAULT


 


2.01         Event
of Default. It is hereby expressly agreed that should any default occur in the payment of principal or interest as stipulated
above whereby such payment is not received by Lender within five (5) days after the date such payment is due (without limiting
the foregoing, no grace or notice period is provided for the payment of principal and interest due on any Payment Date, including
the Maturity Date), or should any other default occur under the Loan Documents which is not cured within any applicable grace or
cure period, an "Event of Default" shall exist hereunder, and in such event, the indebtedness evidenced hereby, including,
without limitation, all sums advanced or accrued hereunder or under any other Loan Document, and all unpaid interest accrued thereon,
shall, at the option of Lender and without notice to Borrower, at once become due and payable and may be collected forthwith, whether
or not there has been a prior demand for payment and regardless of the stipulated date of maturity.


 


2.02         Late
Charges; Default Interest Rate and Liquidated Damages. In the event that any payment under the Loan Documents is not received
by Lender on the date when due (subject to the applicable grace period, if any), then in addition to any default interest payments
due hereunder, Borrower shall also pay to Lender the Late Charge with the next payment
due from Borrower to Lender under the Loan Documents; provided, however, that the Late Charge shall not be charged with respect
to amounts due on the maturity of this Note (regardless of whether such maturity occurs on the scheduled Maturity Date or occurs
as a result of acceleration of the maturity hereof by Lender). All amounts not paid when due under this Note shall bear interest
at the Default Rate, and such default interest shall be immediately due and payable. Borrower acknowledges that it would
be extremely difficult or impracticable to determine Lender's actual damages resulting from any late payment, Event of Default
or prepayment, and the late charges, default interest and prepayment premiums, fees and charges described in this Note are reasonable
estimates of those damages and do not constitute a penalty.


 




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2.03         Cumulative
Remedies. The remedies of Lender in this Note or in the other Loan Documents, or at law or in equity, shall be cumulative
and concurrent, and may be pursued singly, successively or together in Lender's discretion. In the event this Note, or any part
hereof, is collected by or through an attorney-at-law, Borrower agrees to pay all costs of collection, including, but not limited
to, attorneys' fees.


 


2.04         Exculpation.
Subject to the qualifications hereinbelow set forth, Lender agrees that (i) Borrower shall be liable upon the indebtedness evidenced
hereby and for the other obligations arising under the Loan Documents to the full extent (but only to the extent) of the Security
Property, (ii) if an Event of Default occurs, any judicial or other proceedings brought by Lender against Borrower shall be limited
to the preservation, enforcement and foreclosure, or any thereof, of the liens, security titles, estates, assignments, rights and
security interests now or at any time hereafter securing the payment of this Note and/or the other obligations of Borrower under
the Loan Documents, and no attachment, execution or other writ of process shall be sought, issued or levied upon any assets, properties
or funds of Borrower other than the Security Property (other than as expressly provided in the Loan Documents and except with respect
to the liability described below in this Section 2.04), and (iii) in the event of a foreclosure of such liens, security
titles, estates, assignments, rights or security interests securing the payment of this Note and/or the other obligations of Borrower
under the Loan Documents, no judgment for any deficiency upon the indebtedness evidenced hereby shall be sought or obtained by
Lender against Borrower, except with respect to the liability described below, and provided, however, that, notwithstanding the
foregoing provisions of this Section 2.04, Borrower shall be fully and personally liable for and hereby agrees to pay,
protect, defend and save Lender harmless from and against, and hereby indemnifies Lender from and against any and all fees, costs,
expenses, damages, liabilities, obligations, claims, demands, settlements, awards, judgments and losses (including, without limitation,
legal fees and costs as well as other expenses incurred in connection with the defense of any actual or threatened action, proceeding
or claim) (collectively, “Costs”) incurred, suffered or sustained by Lender, resulting from any acts, omissions or
alleged acts or omissions arising out of or otherwise relating to, any one or more of the following:


 


(a)          The
misapplication or misappropriation by Borrower in violation of the Loan Documents of any or all money collected, paid or received,
or to which Borrower is entitled, relating to the Loan or the Security Property, including, but not limited to, Rents and Profits
(as defined in the Security Instrument), insurance proceeds, condemnation awards, lease security and/or other deposits and/or Property
Proceeds (as defined in the Security Instrument);


 


(b)          Rents
and Profits (as defined in the Security Instrument) of all or any portion of the Security Property received by Borrower during
the continuance of an Event of Default, which are not applied to pay, first (a) real estate taxes and other charges which, if unpaid,
could result in liens superior to that of the Security Instrument and (b) premiums on insurance policies required under the Loan
Documents and, second, the other ordinary and necessary expenses of owning and operating the Security Property and to sums due
under the Loan Documents;


 


(c)          Physical
waste committed with respect to the Security Property or damage to the Security Property as a result of intentional misconduct
or gross negligence or the removal of all or any portion of the Security Property in violation of the terms of the Loan Documents;


 


(d)          Fraud,
intentional material misrepresentation or intentional failure to disclose a material fact (including, without limitation, with
respect to any such misrepresentation or failure to disclose in any materials delivered to Lender) by Borrower or Guarantor or
by any other person or entity authorized or apparently authorized to make statements or representations on behalf of Borrower or
Guarantor in connection with the Loan closing or security of or for the Loan, or otherwise in connection with the Property or the
Loan;


 




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(e)          The
filing of any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law, or any similar
federal or state law, by any one or more persons or entities within the capital structure of Borrower or Guarantor (other than
Borrower or Guarantor) against Borrower or Guarantor or if any proceeding seeking the dissolution or liquidation of Borrower or
Guarantor shall be commenced by any one or more persons or entities within the capital structure of Borrower of Guarantor (other
than Borrower or Guarantor) (unless such proceeding is initiated solely in connection with a conversion, reorganization or after
the transfer of all of the assets and liabilities of Guarantor but only to the extent any of such is a Permitted Transfer under
the Security Instrument and not in connection with or in any way related to a proceeding pursuant to state or federal bankruptcy
law, or any similar federal or state law);


 


(f)          The
failure by Borrower to maintain its status as a single purpose and, if applicable, bankruptcy remote entity as required by the
Loan Documents;


 


(g)          Any
information provided by Borrower to Lender in connection with a Secondary Market Transaction (as hereinafter defined) contains
(i) any untrue statement or alleged untrue statement of any material fact or (ii) omits or allegedly omits to state therein a material
fact required to be stated in such information or necessary in order to make the statements in such information, or in light of
the circumstances under which they were made, not misleading;


 


(h)          The
filing or recording of a claim or lien, including without limitation, mechanics, laborers or materialmen's liens, against the Security
Property, whether prior to, equal with or subordinate to the lien of the Security Instrument, which Borrower fails to discharge
or remove from title to the Security Property within thirty (30) days after such filing or recording;


 


(i)          Any
action or the initiation of any proceedings, judicial or otherwise, to enforce the rights or remedies with respect to any of the
loans described in Section 1.40(d) of the Security Instrument by the holder of such loans, including without limitation any action
to enforce remedies with respect to any defaults under such loans or to obtain any judgment or prejudgment remedy against Borrower,
or to assert that such loans enjoy or are entitled to priority over the Loan;


 


(j)          Borrower,
Guarantor or any individual or entity having a direct or indirect interest in Borrower or Guarantor contests, delays or otherwise
hinders any action taken by Lender in connection with Lender taking possession of the Security Property and/or the rents therefrom,
the appointment of a receiver for the Security Property, or the foreclosure of the liens, mortgages, deeds of trust or other security
interests created by any of the Loan Documents; provided that the foregoing shall not prevent any good faith defense that Lender
has not complied with any applicable provision of the Loan Documents that has caused or created, directly or indirectly, the default
at issue pursuant to which Lender is exercising such rights or remedies as long as no obligations relating to the payment of money
under Loan Documents have been breached; and/or


 


(k)          The
failure by Borrower to pay any insurance deductible with respect to any insurance coverage required to be maintained pursuant to
the Security Instrument.


 




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Notwithstanding anything
to the contrary above or otherwise in the Loan Documents, in the event that: (A) payment of the amount due on the First Payment
Date (together with all required reserves) is not paid when due; (B) a Transfer (as such term is defined in the Security Instrument)
of Real Property (as such term is defined in the Security Instrument) or Improvements (as such term is defined in the Security
Instrument) constituting real property occurs which is not a Permitted Transfer (as such term is defined in the Security Instrument)
or which is not otherwise consented to in writing by Lender in accordance with the Security Instrument (provided that no liability
under this paragraph shall arise solely by reason of a failure to give notice of a Permitted Transfer as required by the Security
Instrument); or (C) any petition for bankruptcy, reorganization or arrangement pursuant to state or federal bankruptcy law,
or any similar federal or state law, shall be filed by or consented to, or acquiesced in by, Borrower or Guarantor, or Borrower
or Guarantor seeks (or consents to, or acquiesces in) the appointment of a receiver, liquidator or trustee, or any proceeding for
the dissolution or liquidation of Borrower or Guarantor shall be instituted by or consented to, or acquiesced in by Borrower or
Guarantor (unless such proceeding is initiated solely in connection with a conversion, reorganization or after the transfer of
all of the assets and liabilities of Guarantor but only to the extent any of such is a Permitted Transfer under the Security Instrument
and not in connection with or in any way related to a proceeding pursuant to state or federal bankruptcy law, or any similar federal
or state law), then (i) Borrower shall be fully and personally liable for and agrees to pay, protect, defend and save Lender harmless
from and against, Costs incurred, suffered, or sustained by Lender resulting from any acts, omissions, or alleged acts or omissions
arising out of or relating to, or otherwise arising out of or relating to, any one or more of the foregoing items in (A)-(C) immediately
above; (ii) all of the Obligations (as such term is defined in the Security Instrument) shall be fully recourse to Borrower; and
(iii) Lender shall not be deemed to have waived any right which Lender may have under Section 506 (a), 506 (b), 1111(b) or any
other provisions of the U.S. Bankruptcy Code as same may be amended or replaced to file a claim for the full amount of the Loan
or to require that all collateral shall continue to secure all of the indebtedness owing to Lender in accordance with the Loan
Documents.


 


Nothing contained in
this Section 2.04 shall (1) be deemed to be a release or impairment of the indebtedness evidenced by this Note
or the other obligations, guaranties or indemnities of Borrower under the Loan Documents or the lien of the Loan Documents upon
the Security Property, or (2) preclude Lender from foreclosing the Loan Documents in case of any default or from enforcing any
of the other rights of Lender except as stated in this Section 2.04, or (3) reduce, release, relieve, waive, limit
or impair in any way whatsoever the Indemnity and Guaranty Agreement or the Hazardous Substances Indemnity Agreement each of even
date executed and delivered in connection with the indebtedness evidenced by this Note or release, relieve, reduce, waive or impair
in any way whatsoever (x) any obligation of any party to such Indemnity and Guaranty Agreement or Hazardous Substances Indemnity
Agreement or (y) any other guaranty or indemnity set forth in the Loan Documents.


 


2.05         Recourse
of Assets. It is understood and agreed that in enforcing the obligations of the Borrower or any Guarantor (each being a
“Personally Liable Party”) under the provisions of Section 2.04 above or any other provision of the Loan Documents
imposing personal liability upon a Personally Liable Party, Lender shall have recourse only against the assets of the Personally
Liable Party and shall not have recourse against the assets of any partner, manager, director, member (except to the extent that
a Guarantor is a member of Borrower) or shareholder of a Personally Liable Party. Without limitation on the foregoing, neither
the negative capital account of any member, partner or other owner of an interest in any Personally Liable Party, nor any obligation
of any such member, partner or other owner to restore a negative capital account or to contribute or loan capital to a Personally
Liable Party shall at any time be deemed to be the property or asset of such Personally Liable Party until such time that the loan
or contribution is made.


 


ARTICLE
III

GENERAL CONDITIONS


 


3.01         No
Waiver: Amendment. No failure to accelerate the debt evidenced hereby by reason of default hereunder, acceptance of a partial
or past due payment, or indulgences granted from time to time shall be construed (a) as a novation of this Note or as a reinstatement
of the indebtedness evidenced hereby or as a waiver of such right of acceleration or of the right of Lender thereafter to insist
upon strict compliance with the terms of this Note, or (b) to prevent the exercise of such right of acceleration or any other right
granted hereunder or by any applicable laws; and Borrower hereby expressly waives the benefit of any statute or rule of law or
equity now provided, or which may hereafter be provided, which would produce a result contrary to or in conflict with the foregoing.
No extension of the time for the payment of this Note or any installment due hereunder, made by agreement with any person now or
hereafter liable for the payment of this Note shall operate to release, discharge, modify, change or affect the original liability
of Borrower under this Note, either in whole or in part. unless Lender agrees otherwise in writing. This Note may not be changed
orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or
discharge is sought.


 




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3.02         Waivers.
Borrower and all sureties, guarantors, endorsers and other person or entity liable for payment of this Note (a) waive presentment,
demand for payment, protest, notice of demand, dishonor, protest and nonpayment, and all other notices and demands in connection
with the delivery, acceptance, performance, default under, and enforcement of this Note; (b) waive the right to assert any statute
of limitations as a defense to the enforcement of this Note to the fullest extent permitted by law; (c) consent to all extensions
and renewals of the time of payment of this Note and to all modifications of this Note by the Lender and Borrower without notice
to and without in any way affecting the liability of any Person for payment of this Note; (d) consent to any forbearance by the
Lender and to the release, addition, and substitution of any Person liable for payment of this Note and of any or all of the security
for this Note without notice to and without in any way affecting the liability of any person or entity for payment of this Note;
and (e) consent to personal jurisdiction over each of them by the courts of the State of Ohio.


 


3.03         Limit
of Validity. The provisions of this Note and of all agreements between Borrower and Lender, whether now existing or hereafter
arising and whether written or oral, are hereby expressly limited so that in no contingency or event whatsoever, whether by reason
of demand or acceleration of the maturity of this Note or otherwise, shall the amount paid, or agreed to be paid, to Lender for
the use, forbearance or retention of the money loaned under this Note exceed the maximum amount permissible under applicable law,
usury or otherwise. 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 shall not be applied to the payment of interest.
All interest (including, but not limited to, any amounts or payments deemed to be interest) 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 period until
payment in full of the principal balance of this Note so that the interest thereof for such full period will not exceed the maximum
amount permitted by applicable law. This Section 3.03 will control all agreements between Borrower and Lender.


 


3.04         Use
of Funds. Borrower hereby warrants, represents and covenants that no funds disbursed hereunder shall be used for personal,
family or household purposes.


 


3.05         No
Offsets. No indebtedness evidenced by this Note shall be offset by all or part of any claim, cause of action, or cross-claim
of any kind, whether liquidated or unliquidated, which Borrower now has or may hereafter acquire or allege to have acquired against
the Lender . To the fullest extent permitted by law, Borrower waives the benefits of any applicable law, regulation, or procedure
which provides, in substance, that where cross demands for money exist between parties at any point in time when neither demand
is barred by the applicable statute of limitations, and an action is thereafter commenced by one such party, the other party may
assert the defense of payment in that the two demands are compensated so far as they equal each other, notwithstanding that an
independent action asserting the claim would at the time of filing the response be barred by the applicable statute of limitations.


 




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3.06         Unconditional
Payment. Borrower is and shall be obligated to pay principal, interest and any and all other amounts which become payable
hereunder or under the other Loan Documents absolutely and unconditionally and without any abatement, postponement, diminution
or deduction and without any reduction for counterclaim or setoff. In the event that at any time any payment received by Lender
hereunder shall be deemed by a court of competent jurisdiction to have been a voidable preference or fraudulent conveyance under
any bankruptcy, insolvency or other debtor relief law, then the obligation to make such payment shall survive any cancellation
or satisfaction of this Note or return thereof to Borrower and shall not be discharged or satisfied with any prior payment thereof
or cancellation of this Note, but shall remain a valid and binding obligation enforceable in accordance with the terms and provisions
hereof, and such payment shall be immediately due and payable upon demand.


 


3.07         Miscellaneous.
This Note shall be governed by the substantive laws of the State of Ohio without regard to principles of conflicts of laws. Borrower
hereby irrevocably consents to the exclusive jurisdiction of any state or federal court for the county or judicial district in
the State of Ohio; provided that nothing contained in this Note will prevent the Lender from bringing any action, enforcing any
award or judgment or exercising any rights against the Borrower individually, against any security or against any property of the
Borrower within any other county, state or other foreign or domestic jurisdiction. Borrower waives any objection to venue and any
objection based on a more convenient forum in any action instituted under this Note. Borrower agrees that service of process on
Borrower may be effected by certified or registered mail, return receipt requested, directed to Borrower at its address set forth
above. The terms and provisions hereof shall be binding upon and inure to the benefit of Borrower and Lender and their respective
heirs, executors, legal representatives, successors, successors-in-title and assigns, whether by voluntary action of the parties
or by operation of law. As used herein, the terms "Borrower" and "Lender" shall be deemed to include their
respective heirs, executors, legal representatives, successors, successors-in-title and assigns, whether by voluntary action of
the parties or by operation of law. If Borrower consists of more than one person or entity, each shall be jointly and severally
liable to perform the obligations of Borrower under this Note and the other Loan Documents. All personal pronouns and defined terms
used herein, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include
the plural and vice versa. Titles of articles and sections are for convenience only and in no way define, limit, amplify or describe
the scope or intent of any provisions hereof. Time is of the essence with respect to all provisions of this Note. This Note and
the other Loan Documents contain the entire agreements between the parties hereto relating to the subject matter hereof and thereof
and all prior agreements relative hereto and thereto, which are not contained herein or therein are terminated.


 


SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL. BORROWER, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND
UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO PERSONAL JURISDICTION OF THE STATE OF OHIO OVER ANY SUIT, ACTION OR PROCEEDING
BY ANY PERSON ARISING FROM OR RELATING TO THIS NOTE, THE SECURITY INSTRUMENT OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES THAT
ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF OHIO,
(iii) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND, (iv) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL NOT BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER TO BRING ANY ACTION, SUIT
OR PROCEEDING IN ANY OTHER FORUM). BORROWER FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS
IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO BORROWER AT THE ADDRESS DESCRIBED
ON THE FIRST PAGE HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE
(BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW).


 




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LENDER AND BORROWER,
TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL,
WAIVE, RELINQUISH AND FOREVER FORGO THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN
ANY WAY RELATING TO THE DEBT OR ANY CONDUCT, ACT OR OMISSION OF LENDER OR BORROWER, OR ANY OF THEIR DIRECTORS, OFFICERS, PARTNERS,
MEMBERS, EMPLOYEES, AGENTS OR ATTORNEYS, OR ANY OTHER PERSONS AFFILIATED WITH LENDER OR BORROWER, IN EACH OF THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.


 


3.08         Secondary
Market. Lender may sell, transfer and deliver the Loan Documents to one or more investors in a secondary mortgage market
(a "Secondary Market Transaction"). In connection with such sale or otherwise, Lender may retain or assign responsibility
for servicing the Loan evidenced by this Note or may delegate some or all of such responsibility and/or obligations to one or more
servicers, including, but not limited to, any subservicer or master servicer on behalf of the investors. Supplementing Section 3.07,
above, all references to Lender herein shall refer to and include, without limitation, any such servicer, to the extent applicable.


 


3.09         Dissemination
of Information. If Lender determines at any time to sell, transfer or assign this Note, the Security Instrument and the
other Loan Documents, and any or all servicing rights with respect thereto, or to grant participations therein or issue, or cause
to be issued, mortgage pass-through certificates or other securities evidencing a beneficial interest in a rated or unrated public
offering or private placement, Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor, or
their respective successors in such participations and/or securities or any Rating Agency rating such securities, each prospective
investor and each of the foregoing's respective counsel, all documents and information which Lender now has or may hereafter acquire
relating to the debt evidenced by this Note and to Borrower, any guarantor, any indemnitor and the Security Property, which shall
have been furnished by Borrower, any guarantor or any indemnitor, as Lender determines necessary or desirable.


 


Borrower's Tax Identification No.: 26-0419753


 


[NO FURTHER TEXT ON THIS PAGE]


 




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IN WITNESS WHEREOF,
Borrower, through its authorized signatory, has executed this Note under seal as of the date first above written. 


 


	 	
        BEHRINGER HARVARD MOCKINGBIRD

        COMMONS, LLC, a Delaware limited liability
        company

	 	 
	 	By:	Behringer Harvard Mockingbird Commons GP
	 	 	LLC, a Texas limited liability company,
	 	 	its Manager
	 	 	 
	 	 	By: 	/s/ Michael J. O’Hanlon
	 	 	 
	 	 	Name: 	Michael J. O’Hanlon
	 	 	 
	 	 	Title: 	Chief Executive Officer


 




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