Exhibit 10.1


 


AMENDED AND RESTATED UNSECURED
PROMISSORY NOTE


 




	
  March 27, 2008

  	
   

  	
  Up to $20,000,000

  






 


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 Million
Dollars ($20,000,000) 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 Amended and Restated Promissory Note
(this “Note”), amends and restates in its entirety the Secured Promissory Note
dated November 9, 2007 made by the Borrower to the Lender (the “Original
Note”).  It is acknowledged and agreed
that amounts outstanding under the Original Note through December 31, 2007
were forgiven and that on January 14, 2008 an additional Advance of
$1,000,000 was made thereunder and remains outstanding on the date hereof.  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
million dollars ($20,000,000) 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


 


 


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right
to exercise the same or any other right at any time and from time to time
thereafter.  The 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;


 


 


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(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.


 


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


 


 


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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 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.


 


 


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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.


 




	
  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

  






 


 


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LOANS AND PAYMENTS OF PRINCIPAL


 




	
  Date

  	
   

  	
  Amount of Loan

  or Principal

  Paid

  	
   

  	
  Interest Paid

  	
   

  	
  Unpaid

  Principal

  Balance

  	
   

  	
  Notation

  Made By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  






 


 


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