Exhibit 10.1


 


SECOND AMENDED
AND RESTATED UNSECURED PROMISSORY NOTE


 




	
  August 20, 2008

  	
   

  	
  Up to
  $25,000,000

  






 


FOR VALUE RECEIVED, the undersigned,
BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas limited partnership
(the “Borrower”), HEREBY PROMISES TO PAY to the order of BEHRINGER HARVARD
HOLDINGS, LLC, a Delaware limited liability company (the “Lender”), the
principal amount outstanding from time to time as set forth on the attached
grid equal to the outstanding amount of the Advances (as hereinafter defined),
up to a maximum of Twenty Five Million Dollars ($25,000,000) in Advances, made
by Lender to Borrower hereunder, on the third anniversary of the date hereof (the
“Maturity Date”) together with all accrued and unpaid interest hereunder on
such date.  This Second Amended and
Restated Promissory Note (this “Note”) amends and restates in its entirety that
certain Amended and Restated Unsecured Promissory Note dated March 27, 2008
made by the Borrower to the Lender (the “Prior Note”).  All amounts borrowed under such Prior Note
shall be deemed borrowed hereunder as of the dates of such borrowings under the
terms hereof and as reflected on the attached grid.  Amounts advanced (or deemed advanced)
hereunder shall be unsecured obligations of the Borrower.


 


From time to time, until the day immediately
prior to the Maturity Date, if requested by the Borrower, the Lender may, in
its sole discretion, make advances to the Borrower (each an “Advance”).  An Advance may be made by transfer of funds to
the Borrower or by payment of obligations of the Borrower by the Lender.  The Borrower shall have no obligation to make
any Advance hereunder, all of such Advances being discretionary and to be made
on the sole discretion of the Lender.  In
no event shall any actual or purported written or unwritten agreement of the
Lender to make an Advance be enforceable or binding upon the Lender.  An Advance shall exist only after it is
actually made by the advancement of funds to or on behalf of the Borrower or
the payment of an obligation of the Borrower by the Lender and no obligation to
make such Advance shall exist until it is so made or such obligation is paid.  At no time shall there Advances by made such
that there will be in excess of twenty five million dollars ($25,000,000) in
principal amount outstanding hereunder upon the making of such Advance.


 


Each Advance shall be requested on notice,
given not later than 10:00 a.m. (Dallas, Texas time) on the Business Day
prior to the date of the requested Advance given by the Borrower to the Lender.


 


The Borrower shall pay interest on the unpaid
principal amount of each Advance owing to the Lender from the date of such
Advance until such principal amount shall be paid in full, at the rate of five
percent (5%) per annum.  Notwithstanding
the above, after the occurrence of an Event of Default (as hereinafter
defined), interest on the unpaid principal amount of each Advance shall accrue,
at the rate of the lesser of twelve percent (12%) per annum or the highest rate
permitted by applicable law from the date of the Event of Default while such
Event of Default is continuing.  All
payments on this Note shall-be applied to the payment of accrued interest
before being applied to the payment of principal.


 

















 


The Borrower may, upon at least one Business
Day notice to the Lender stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall on
such proposed date, prepay the principal amount of outstanding Advances, in
whole or in part, in the aggregate amount stated in such notice, without
penalty or premium; provided that all interest accrued and unpaid hereunder to
the date of such prepayment is paid therewith. 
Notwithstanding any prepayment, reborrowings in the form of additional
Advances as set forth above may be made to the Maturity Date set forth above.


 


The Borrower shall make each payment
hereunder not later than 10:00 a.m. (Dallas, Texas time) on the day when
due in United States Dollars.  All
payments under this Note shall be made without setoff or counterclaim.


 


Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day (as hereafter defined),
such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment
of interest, as the case may be. A “Business Day” shall be any day that banks
are authorized to be open in Dallas, Texas.


 


All computations of interest shall be made by
the Lender on the basis of the number of days in the year in question, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest is payable.  Each determination by the Lender of an
interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.


 


Interest on any past due payment shall be
payable on demand.


 


Both principal and interest shall be due and
payable, in lawful money of the United States of America, in immediately available
funds to the Lender, 15601 Dallas Parkway, Suite 600, Dallas, Texas 75001
or at such other place as may be designated by the Lender from time to time.  All Advances made and payments made on account
of principal hereof shall be recorded by the Lender and endorsed on the
schedule attached hereto which is part of this Note; provided that any failure
to so record shall not affect the actual obligations of the Borrower hereunder.


 


The Borrower, for itself and its legal
representatives, successors, and assigns, hereby expressly waives presentment,
demand (other than demand for payment), protest, notice of dishonor, notice of
acceleration, notice of intent to accelerate, or further notice or other
requirements of any kind.  No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder hereof shall operate as a waiver of such rights.


 


The liability of the Borrower hereunder shall
be unconditional and shall not be in any manner affected by any indulgence
whatsoever granted or consented to by the holder hereof, including but not
limited to any extension of time, renewal, waiver, or other modification.  Any failure of the holder to exercise any
right hereunder shall not be construed as a waiver of the right to exercise the
same or any other right at any time and from time to time thereafter.  The 


 


2

















 


Lender or any
holder may accept late payments, or partial payments, even though marked “payment
in full” or containing words of similar import or other conditions, without
waiving any of its rights.  No amendment,
modification, or waiver of any provision of this Note nor consent to any
departure by the Borrower therefrom shall be effective, irrespective of any
course of dealing, unless the same shall be in writing and signed by the
Lender, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.  This Note cannot be changed or terminated
orally or by estoppel or waiver or by any alleged oral modification regardless
of any claimed partial performance referable thereto.


 


Any notice from the Lender to the Borrower
shall be deemed given when delivered to the Borrower by hand or facsimile or
five days after deposited in United States mail or the day deposited in the
U.S. mail and addressed to the Borrower at the last address of the Borrower
appearing on the Lender’s records.


 


If any of the following events shall occur
and be continuing:


 


(a)           (i)            the Borrower shall fail to pay any
principal hereof, or interest hereon, when the same becomes due and payable,
and, in the case of such payments other than principal, such failure shall
continue for three days, or (ii) the Borrower shall fail to make any other
payment under this Note within five days; or


 


(b)           the
Borrower shall fail to perform any other term, covenant, or agreement contained
in this Note to be performed or observed if such failure shall remain
unremedied for ten days after the Borrower receives written notice thereof or


 


(c)           the
Borrower shall breach any covenant, agreement or obligation to the Lender
existing under any other agreement between the Borrower and the Lender; or


 


(d)           the
Borrower shall (i) breach any obligation of the Borrower under any
instrument representing indebtedness for money borrowed causing the
acceleration of the repayment of such indebtedness, (ii) breach any
obligation of the Borrower under any capital lease causing the acceleration of
the lease payments under any such capital lease or (iii) receive any
notice of any such acceleration; or


 


(e)           (i)            the Borrower shall generally not pay
its debts as such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for the benefit of
creditors;


 


(ii)           any
proceeding shall be instituted by the Borrower seeking to adjudicate it as
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency, or reorganization or relief
of debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property;


 


3

















 


(iii) there shall be commenced against
the Borrower any proceeding referred in subparagraph (e)(ii) above which
results in the entry of an order for relief or any such adjudication or the
appointment of a receiver, trustee or other similar official for it or any
substantial part of its property which remains undismissed, undischarged, or
unbonded for a period of 30 days, provided that the Borrower, for itself and on
behalf of itself, hereby expressly authorizes the Lender to appear in any court
conducting any such proceeding during such 30-day period to preserve, protect,
and defend their rights under this Note; or


 


(iv)          the
Borrower shall take any corporate action to authorize any of the actions set
forth above in this subparagraph (e); or


 


(f)            Any
provision of this Note after delivery hereof shall for any reason cease to be
valid and binding on or enforceable against the Borrower, or the Borrower shall
so state in writing.


 


Then, and in any such event (other than such
an event described in subparagraph (e)(ii) or (iii) above), the
Lender may (i) by written notice to the Borrower, declare that an “Event
of Default” exists and any obligation of the Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, (ii) by notice
to the Borrower, declare this Note, all interest thereon and all other amounts
payable under this Note to be forthwith due and payable, and thereupon this
Note, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest, notice of intent to
accelerate, other notice or other requirements of any kind, all of which are
hereby expressly waived by the Borrower, (iii) pursue any other applicable
rights and remedies, or (iv) reduce any claim to judgment or bring suit or
other proceeding either for specific performance of any covenant or condition
or in aid of the exercise of any right or remedy.


 


If an event occurs such as is described under
subparagraph (e)(ii) or (iii) above, then, notwithstanding the
foregoing an “Event of Default” shall automatically exist without the need for
notice from the Lender any obligation of the Lender to make any Advance
thereupon shall cease without notice, and the unpaid principal amount of and
any accrued interest on all of the Advances automatically shall become due and
payable, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration or other notice or other requirements of any kind, all
of which are hereby expressly waived by the Borrower.


 


By acceptance of this Note, the Lender agrees
that the indebtedness evidenced by this Note will be subordinate to other
indebtedness (“Other Indebtedness”) advanced to the Borrower by one or more
other lenders (an “Other Lender”) on terms requested by such Other Lender that
are commercially reasonable in any of the following circumstances:  (a) such Other Lender requires in
writing that the indebtedness evidenced by this Note be subordinated to Other
Indebtedness as a condition to advancing the Other Indebtedness to the Borrower;
(b) subordination of the indebtedness evidenced by this Note to Other
Indebtedness is necessary in order for the Borrower to be in compliance with
any financial covenants set forth in the documents evidencing or securing such
Other Indebtedness; or (c) subordination of the indebtedness evidenced by
this Note to Other Indebtedness is necessary to otherwise avoid the 


 


4

















 


occurrence of
a default by the Borrower under the documents evidencing or securing such Other
Indebtedness.  The foregoing
subordination of the indebtedness evidenced by this Note will be self-operative;
but in any of the circumstances described in clauses (a), (b) or (c) of
the preceding sentence, the Lender will, within ten (10) days after the
request of the Borrower, execute a commercially reasonable subordination
agreement evidencing such subordination.


 


The Borrower agrees to pay on demand all
reasonable costs and expenses incurred by the Lender in connection with this
Note.  The Borrower further agrees to pay
on demand all costs and expenses incurred by the Lender in connection with the
enforcement of this Note, including reasonable attorney’s fees, incurred in
connection with such enforcement.


 


It is the intention of the Lender and the Borrower to conform strictly
to the applicable usury laws now or hereafter in force, and therefore, all
agreements between the Borrower and the 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 the creation
of the indebtedness evidenced hereby, acceleration of the maturity hereof, or
otherwise, shall the amount paid, or agreed to be paid, to the Lender for the
use, forbearance, or detention of the money evidenced hereby or to be loaned
hereunder or otherwise or for the payment or performance of any covenant or
obligations contained herein or in any instrument evidencing, securing, or
pertaining to the indebtedness evidenced hereby, exceed the maximum lawful rate
allowed by applicable law.  If any term
hereof is susceptible of being construed as obligating the Borrower for the
payment of interest in excess of that authorized by applicable law, or if, from
any other circumstances whatsoever, including, but not limited to, acceleration
of the maturity of the indebtedness evidenced hereby, fulfillment of any
provision hereof or of any document or any other agreement referred to herein
at the time performance of such provision shall be due, shall involve
transcending the limit of validity prescribed by law which a court of competent
jurisdiction may deem applicable thereto, then, the obligation to be fulfilled
shall be automatically reduced to the limit of such validity; and, if from any
such circumstances the Lender should ever receive or be entitled to receive as
interest an amount deemed to be interest by applicable law which shall exceed
the maximum lawful rate, such amount which would be excessive interest shall be
cancelled automatically as of the date of the occurrence of any such
circumstance, and if theretofore paid shall be refunded or credited and applied
to the reduction of the principal amount owing hereunder or, at the option of the
Lender, to the reduction of any other principal indebtedness of the Borrower to
the Lender, and not to the payment of interest or, if such excess interest
exceeds the unpaid balance of principal hereof and such other Indebtedness, the
excess shall be refunded to the Borrower, and, in such event, no holder of this
Note shall be subject to any penalties provided by law for contracting for,
charging or receiving interest in excess of the maximum lawful rate.  The right to accelerate the maturity of sums
due under this Note does not include the right to accelerate any interest which
has not otherwise accrued on the date of such acceleration, and the Lender does
not intend to charge or collect any unearned interest in the event of
acceleration.  All sums paid or agreed to
be paid by the Borrower to the Lender for the use, forbearance, or detention of
the indebtedness due hereunder shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full term of
such indebtedness evidenced by this Note until payment in full so that the
actual rate of interest on account of such indebtedness does not exceed the
applicable usury 


 


5

















 


ceiling.  In determining whether or not the interest
paid or payable under any specific contingency exceeds the maximum lawful rate,
the Borrower and the Lender shall, to the maximum extent permitted under
applicable law, (a) characterize any non-principal payment as an expense,
fee or premium rather than as interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) “spread” the total amount of interest
throughout the entire term of this Note so that the interest rate Is uniform
throughout the entire term of this Note. 
The terms and provisions of this section shall control and supersede
every other provision of all agreements between the Borrower and the Lender,
notwithstanding any provision to the contrary contained herein or in any such
agreements.


 


If any part of this Note cannot be enforced, this fact will not affect
the rest of the Note.  In particular,
this paragraph means (among other things) that the Borrower does not agree or
intend to pay, and Lender does not agree or intend to contract for, charge,
collect, take, reserve or receive (collectively referred to herein as “charge
or collect”), any amount in the nature of interest or in the nature of a fee
for this loan, which would in any way or event (including demand, prepayment,
or acceleration) cause the Lender to charge or collect more for this loan than
the maximum the Lender would be permitted to charge or collect by federal law
or applicable state law.  Upon any change
in the terms of this Note, and unless otherwise expressly stated in writing, no
party who signs this Note, whether as maker, guarantor, accommodation maker or
endorser, shall be released from liability. 
All such parties agree that Lender may renew or extend (repeatedly and
for any length of time) this loan, or release any party or guarantor or collateral;
or impair, fail to realize upon or perfect any security interest of the Lender in
any collateral without the consent of or notice to anyone.  All such parties also agree that the Lender
may modify this loan without the consent of or notice to anyone other than the
party with whom the modification is made. 
This Note and all the covenants, promises and agreements contained
herein shall be binding upon and inure to the benefit of the respective legal
representatives, successors and assigns of the Lender and the Borrower.


 


Any obligation or liability of the Borrower hereunder shall be
enforceable only against, and payable only out of, the assets of the Borrower,
and in no event shall any officer, director, shareholder, partner, beneficiary,
agent, advisor or employee of the Borrower be held to any personal liability
whatsoever or be liable for any of the obligations of the Borrower under this
Note.  Without limiting the generality of
the preceding sentence, no general partner in the Borrower shall have any
liability for payment of this Note.


 


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


 


The provisions of Chapter 15 of
the Texas Credit Code (Vernon’s Texas Civil Statutes, Article 5069-15)  are specifically declared by
the parties hereto not to be applicable to this Note.


 


THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH LAWS OF
THE STATE OF TEXAS.


 


6

















 


	
  BEHRINGER HARVARD 

  HOLDINGS, LLC

  	
  BEHRINGER HARVARD SHORT-TERM 

  OPPORTUNITY FUND I LP

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Behringer Harvard Advisors II LP

  
	
   

  	
   

  	
   

  	
  Co-General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
        Gerald
  J. Reihsen, III

  	
   

  	
  Gerald J. Reihsen, III

  
	
   

  	
        Executive
  Vice President

  	
   

  	
  Secretary

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
    Robert M. Behringer, Co-General Partner

  
								



 


7

















 


LOANS AND
PAYMENTS OF PRINCIPAL


 




	
  Date

  	
   

  	
  Amount of Loan 

  or Principal 

  Paid

  	
   

  	
  

  Interest Paid

  	
   

  	
  Unpaid

  Principal

  Balance

  	
   

  	
  Notation

  Made By

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


8