Exhibit 10.2


 


PROMISSORY NOTE


 


	
  U.S. $23,500,000.00

  	
  Effective as of

  
	
   

  	
  December 31, 2008

  



 


	
  I.

  	
  COVENANT
  TO PAY.

  



 


1.1.          Promise to Pay.  FOR VALUE RECEIVED, Behringer Harvard 1875
Lawrence, LLC, a Delaware limited liability company (“Borrower”), at
15601 Dallas Parkway, Suite 600, Addison, Texas 75001, promises to pay to
the order of Mutual of Omaha Bank, a federally chartered savings bank [herein,
together with all subsequent holders of this Promissory Note (“Note”),
called “Lender”], at 4455 LBJ Freeway, Suite 907, Dallas, Texas
75244, on or before the Maturity Date (as herein defined), as hereinafter
provided, the principal sum of TWENTY-THREE MILLION FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($23,500,000.00), or so much thereof as may be outstanding
hereunder, together with interest on the unpaid principal balance from time to
time outstanding at the rate herein specified and otherwise in strict
accordance with the terms and provisions hereof.


 


	
  II.

  	
  INTEREST
  RATE COMPUTATION.

  



 


2.1.          Interest Rate.  Interest shall accrue on the unpaid principal
balance of this Note from the date hereof at the LIBOR Market Index Rate plus
two and one-half percent (2.50%) per annum (“Interest Rate”), as that
rate may change from day to day in accordance with changes in the LIBOR Market
Index Rate, provided, in no event shall the Interest Rate be less than six and
one quarter percent (6.25%) per annum.  “LIBOR
Market Index Rate”, for any day, means the floating interest rate per annum for
one (1) month U.S. dollar deposits as reported on Telerate page 3750
as of 11:00 a.m., London time, on such day, or if such day is not a London
business day, then the immediately preceding London business day (or if not so
reported, then as determined by Bank from another recognized source or interbank
quotation).


 


2.2.          Default Rate.  Upon the occurrence and during the
continuation of a default in the payment of any principal or interest
obligations hereunder or, otherwise, upon the occurrence and during the
continuation of any Event of Default (as defined herein), at the option of
Lender, the principal balance of this Note then outstanding shall bear interest
for the period beginning with the date of occurrence of such default at the
Default Rate (as defined herein).


 


2.3.          Definitions.  As used in this Note and the Loan Documents,
the following terms shall have the respective meanings indicated below:


 


1

















 


“Advance” shall mean an advance made by Lender to Borrower
pursuant to the Loan Documents.


 


“Amortization Term” shall mean twenty-five (25) years.


 


“Business Day” shall mean any day on which the Lender is open
and on which commercial banks in Texas are not authorized or required to be
closed.


 


“Charges” shall mean all fees and charges, if any, contracted
for, charged, received, taken or reserved by Lender in connection with the
transactions relating to this Note and the indebtedness evidenced hereby or by
the Loan Documents which are treated as interest under applicable law.


 


“Default Rate” shall mean the lesser of (a) the Maximum
Lawful Rate; or (b) the sum of the Interest Rate set forth in Section 2.1
above plus five percent (5%).


 


“Event of Default” shall have the same meaning as that indicated
for such term in the Loan Agreement.


 


“Lien Instrument” shall mean that certain Mortgage or Deed of
Trust of even date herewith, executed by Borrower, covering the Mortgaged
Property.


 


“Loan Agreement” shall mean that certain Loan Agreement dated
effective as of the date hereof, by and between Borrower, as borrower, and
Lender, as lender, relative to the indebtedness evidenced by this Note and
related obligations.


 


“Loan Documents” shall collectively mean this Note, the Loan
Agreement, the Lien Instrument, and all other documents evidencing, securing or
otherwise supporting the transaction in which the indebtedness evidenced hereby
was incurred.


 


“Maturity Date” shall mean the Original Maturity Date; subject,
however, to the right of acceleration as herein provided and as provided in the
Loan Documents.


 


“Maximum Lawful Rate” shall mean the maximum lawful rate of
interest which may be contracted for, charged, taken, received or reserved by
Lender in accordance with the applicable laws of the State of Texas (or
applicable United States federal law to the extent that it permits Lender to
contract for, charge, take, receive or reserve a greater amount of interest
than under Texas law), taking into account all Charges made in connection with
the loan evidenced by this Note and the Loan Documents.


 


“Mortgaged Property” shall mean the Property as defined in the
Lien Instrument.


 


2

















 


“Original Maturity Date” shall mean the date that is four (4) years
from the effective date hereof.


 


“Outstanding Principal Balance” shall mean the amount of
principal then advanced and outstanding and payable from Borrower to Lender in
accordance with this Note.


 


“Payment Date” shall mean the first (1st) day of each calendar
month.


 


“Principal Reduction Payment” shall mean a principal and
interest payment installment in an amount equal to the sum that would be owing
for such calendar month based upon a twenty-five (25) year mortgage
amortization of the amount of the Outstanding Principal Balance on the first
day of the twenty-fifth (25th) calendar month from the date of this
Note and at the Interest Rate set forth in Section 2.1 hereof on such day.


 


Any capitalized term used in this Note and not otherwise defined herein
shall have the meaning ascribed to each such term in the Loan Agreement.  All terms used herein, whether or not defined
in this Section 2.3, and whether used in singular or plural form,
shall be deemed to refer to the object of such term whether such is singular or
plural in nature, as the context may suggest or require.


 


2.4.          Computation
Period.  Except for the computation
of the Maximum Lawful Rate which shall be undertaken on the basis of a 365 or
366 day year, as the case may be, interest on the indebtedness evidenced by
this Note shall be computed on the basis of a 360 day year and shall accrue on
the actual number of days any principal balance hereof is outstanding,
including the date of disbursement but excluding the date of payment.


 


	
  III.

  	
  PAYMENTS.

  



 


3.1.          Payment Schedule.  This Note shall be due and payable as
follows:


 


(a)           Commencing
on the Payment Date of the first calendar month following the date of this Note
and continuing thereafter on the Payment Date of each successive calendar month
through and including twenty-four (24) months from the date of this Note,
Borrower shall pay Lender successive monthly installments of all accrued and
unpaid interest;


 


(b)           Commencing
on the Payment Date of the twenty-fifth (25th) calendar month from
the date of this Note, and continuing thereafter on the Payment Date of each
successive calendar month until the Maturity Date, Borrower shall pay Lender
successive monthly installments of the Principal Reduction Payment.  If the Interest Rate changes as of the first
(1st) day of the thirty-sixth (36th) calendar month from
the date of this Note, from the rate in effect the first (1st) day
of the twenty-fifth (25th) month as set forth above, Lender shall
recalculate the Principal Reduction Payment so that the remaining monthly
installments would amortize the Outstanding Principal Balance at the then applicable


 


3

















 


Interest Rate over the remaining Amortization
Term.  Lender shall notify Borrower of
any such recalculation and Borrower agrees to pay the Principal Reduction
Payment as they may be recalculated by Lender, and acknowledges that a
recalculation of the Principal Reduction Payment shall not affect the Maturity
Date or the other terms and provisions of this Note; and


 


(c)           The
Outstanding Principal Balance and any and all accrued but unpaid interest thereon
shall be due and payable in full on the Maturity Date or upon earlier maturity
hereof, whether by acceleration or otherwise.


 


3.2.          Application.  All payments on this Note shall, at the sole
option of Lender, be applied at any time and from time to time and in any
order, to the following:  (a) the
payment or reimbursement of any expenses, costs or obligations (other than the
principal hereof and interest hereon) for which Borrower shall be obligated or
Lender entitled pursuant to the provisions hereof or of the other Loan
Documents, (b) the payment of accrued but unpaid interest hereon, and (c) the
payment of all or any portion of the Outstanding Principal Balance, in either
the direct or inverse order of maturity; provided, however, that the funds applied
to principal of any Principal Reduction Payment shall be applied to the
Outstanding Principal Balance in the direct order of maturity.


 


3.3.          Place.  All payments hereunder shall be made to
Lender at its offices located at the address of Lender as specified herein or
as Lender may from time to time designate in writing to Borrower.


 


3.4.          Business Days.  If any payment of principal or interest on
this Note shall become due and payable on any day which is not a Business Day,
such payment shall be made on the next following Business Day.  Any extension of time for payment shall be
included in computing interest which has accrued and shall be payable in
connection with such payment.


 


3.5.          Legal Tender.  All amounts payable hereunder are payable in
lawful money or legal tender of the United States of America.


 


3.6.          Prepayment.  Borrower shall have the right to prepay, at
any time and from time to time without premium or penalty, the entire unpaid
principal balance of this Note or any portion thereof, after thirty (30) prior
days written notice to Lender, but must: (i) pay the amount of then
accrued but unpaid interest on the amount of principal being so prepaid, and (ii) pay
a pre-payment penalty of one percent (1%) of the Outstanding Principal Balance
if prepaid during the first twelve (12) months from the date of this Note, of
one-half of one percent (0.5%) of the Outstanding Principal Balance if prepaid
during the thirteenth (13th) through the twenty-fourth (24th)
month following the date of this Note, and no prepayment penalty shall be due
in the event of a prepayment after the twenty-fourth (24th) month
from the date of this Note.  Any such
partial prepayments of principal shall be applied in inverse order of maturity
to the last maturing installment(s) of principal.  It is expressly agreed and understood that
this Note does not evidence a revolving facility in that any amount so prepaid
may not be readvanced.


 


4

















 


	
  IV.

  	
  DEFAULT
  AND REMEDIES.

  



 


4.1.          Default.  Borrower shall be in default hereunder
immediately upon the occurrence and during the continuance of an Event of
Default.


 


4.2.          Remedies.  If an Event of Default shall occur and be
continuing, then Lender may, at its option, without notice or demand, declare the
unpaid principal balance of, and the accrued but unpaid interest on, this Note
immediately due and payable, foreclose all liens and security interests
securing payment hereof, pursue any and all other rights, remedies and
recourses available to Lender or pursue any combination of the foregoing.  All remedies hereunder, under the Loan
Documents and at law or in equity shall be cumulative.


 


4.3.          Waiver.  Borrower and any endorsers or guarantors
hereof severally waive presentment and demand for payment, notice of intent to
accelerate maturity, notice of acceleration of maturity, protest and notice of
protest and non payment, bringing of suit and diligence in taking any action to
collect any sums owing hereunder or in proceeding against any of the rights and
collateral securing payment hereof. 
Borrower and any endorsers or guarantors hereof agree (a) that the
time for any payments hereunder may be extended from time to time without
notice and consent, (b) to the acceptance of further collateral, and/or (c) the
release of any existing collateral for the payment of this Note, all without in
any manner affecting their liability under or with respect to this Note.  No extension of time for the payment of this
Note or any installment hereof shall affect the liability of Borrower under
this Note or any endorser or guarantor hereof even though Borrower or such
endorser or guarantor is not a party to such agreement.


 


4.4.          No Waiver.  Failure of Lender to exercise any of the
options granted herein to Lender upon the happening of one or more of the
events giving rise to such options shall not constitute a waiver of the right
to exercise the same or any other option at any subsequent time in respect to
the same or any other event.  The
acceptance by Lender of any payment hereunder that is less than payment in full
of all amounts due and payable at the time of such payment shall not constitute
a waiver of the right to exercise any of the options granted herein to Lender
at that time or at any subsequent time or nullify any prior exercise of any
such option without the express written acknowledgment of Lender.


 


4.5.          Collection Costs.  Borrower agrees to pay all costs of
collection hereof when incurred, including reasonable attorneys’ fees, whether
or not any legal action shall be instituted to enforce this Note.


 


4.6.          Late Charge.  Without limitation of any other remedies
available to Lender hereunder or under the Loan Documents, if Borrower fails or
neglects to pay any installment of the indebtedness evidenced hereby, other than
any amount due upon acceleration or at maturity, more than ten (10) days
after its due date, then Borrower shall be obligated to pay to Lender a late
charge equal to five percent (5%) of the amount of such delinquent payment to
compensate Lender for Borrower’s delay and the additional costs and
administrative efforts required by reason of such delay, provided, that should
such late charge constitute interest under any 


 


5

















 


applicable law, such late charge shall not, together with other
interest to be paid, charged, contracted for, received or reserved against or
taken on the indebtedness evidenced by this Note or indebtedness arising under
any other Loan Documents, exceed the Maximum Lawful Rate.


 


V.            MISCELLANEOUS.


 


5.1.          Loan Documents.  This Note is issued pursuant to the Loan
Agreement and is secured, inter alia, by the Lien Instrument covering the
Mortgaged Property.


 


5.2.          Notices.  All notices or other communications required
or permitted to be given pursuant hereto shall be in accordance with the
provisions of the Loan Agreement.


 


5.3.          GOVERNING LAW.  THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.  THIS NOTE
IS PERFORMABLE IN DALLAS COUNTY, TEXAS. 
Any action or proceeding under or in connection with this Note against
Borrower or any other party ever liable for payment of any sums of money
payable on this Note may be brought in any state or federal court in Dallas
County, Texas.  Borrower and each such
other party hereby irrevocably (a) submits to the nonexclusive
jurisdiction of such courts, and (b) waives any objection it may now or
hereafter have as to the venue of any such action or proceeding brought in such
court or that such court is an inconvenient forum.


 


5.4.          Interest
Limitation.  It is expressly
stipulated and agreed to be the intent of Borrower and Lender at all times to
comply with the applicable Texas law governing the maximum rate or amount of
interest payable on this Note or the indebtedness evidenced hereby and by the
other Loan Documents (or applicable United States federal law to the extent
that it permits Lender to contract for, charge, take, reserve or receive a
greater amount of interest than under Texas law).  If (a) the applicable law is ever
judicially interpreted so as to render usurious any amount called for under
this Note or under any of the other Loan Documents, or contracted for, charged,
taken, reserved or received with respect to the indebtedness evidenced by this
Note and the other Loan Documents, or (b) Lender’s exercise of the option
herein contained to accelerate the maturity of this Note or any prepayment by
Borrower results in Borrower having paid any interest in excess of that
permitted by applicable law, then it is Borrower’s and Lender’s express intent
that (i) all excess amounts theretofore collected by Lender be credited on
the principal balance of this Note (or, if this Note has been or would thereby
be paid in full, refunded to Borrower), and (ii) the provisions of this
Note and the other Loan Documents immediately be deemed reformed and the
amounts thereafter collectible hereunder and thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the
applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder and thereunder. 
All sums paid or agreed to be paid to Lender for the use, forbearance and
detention of the indebtedness evidenced hereby and by the other Loan Documents
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until
payment in full so that the rate or amount of interest on account of such
indebtedness does not exceed the usury ceiling from time to time in effect and
applicable


 


6

















 


to such indebtedness for so long as debt is outstanding.  To the extent that Lender is relying on
Chapter 303, as amended, of the Texas Finance Code to determine the Maximum
Lawful Rate payable on such indebtedness, Lender will utilize the weekly rate
ceiling from time to time in effect as provided in such Chapter 303, as
amended.  To the extent United States federal
law permits Lender to contract for, charge or receive a greater amount of
interest than Texas law, Lender will rely on United States federal law instead
of such Chapter 303, as amended, for the purpose of determining the Maximum
Lawful Rate.  Additionally, to the extent
permitted by applicable law now or hereafter in effect, Lender may, at its
option and from time to time, implement any other method of computing the
Maximum Lawful Rate under such Chapter 303, as amended, or under other
applicable law by giving notice, if required, to Borrower as provided by
applicable law now or hereafter in effect. 
In no event shall the provisions of Chapter 346 of the Texas Finance
Code (which regulates certain revolving credit loan accounts and revolving
triparty accounts) apply to the indebtedness evidenced hereby.  Borrower hereby agrees that as a condition
precedent to any claim seeking usury penalties against Lender, Borrower will
provide written notice to Lender, advising Lender in reasonable detail of the
nature and amount of the violation, and Lender shall have sixty (60) days after
receipt of such notice in which to correct such usury violation, if any, by
either refunding such excess interest to Borrower or crediting such excess
interest against this Note and/or any other indebtedness then owing by Borrower
to Lender.  Notwithstanding anything to
the contrary contained herein or in any of the other Loan Documents, it is not
the intention of Lender to accelerate the maturity of any interest that has not
accrued at the time of such acceleration or to collect unearned interest at the
time of such acceleration.


 


5.5.          Captions.  The article and section headings used in this
Note are for convenience of reference only and shall not affect, alter or
define the meaning or interpretation of the text of any article or section
contained in this Note.


 


5.6.          Joint and Several
Liability.  If this Note is executed
by more than one party, each such party shall be jointly and severally liable
for the obligations of Borrower under this Note.  If Borrower is a partnership, each general
partner of Borrower shall be jointly and severally liable hereunder, and each
such general partner hereby waives any requirement of law that in the event of
a default hereunder, Lender exhaust any assets of Borrower before proceeding
against such general partner’s assets.


 


5.7.          WAIVER OF RIGHT TO TRIAL BY JURY.  TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM THAT RELATES TO OR ARISES
OUT OF ANY OF THE LOAN DOCUMENTS OR THE ACTS OR FAILURE TO ACT OF OR BY LENDER
IN THE ENFORCEMENT OF ANY OF THE TERMS OR PROVISIONS OF THIS NOTE OR THE OTHER
LOAN DOCUMENTS.


 


5.8.          NO ORAL AGREEMENTS.  THIS NOTE
AND ALL THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT  OF BORROWER AND LENDER AND SUPERSEDE ANY AND ALL PRIOR
COMMITMENTS,


 


7

















 


AGREEMENTS, REPRESENTATIONS AND
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF
AND THEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF BORROWER AND
LENDER.  THERE ARE NO ORAL AGREEMENTS
BETWEEN BORROWER AND LENDER.  THE
PROVISIONS OF THIS NOTE AND THE LOAN DOCUMENTS MAY BE AMENDED OR REVISED
ONLY BY AN INSTRUMENT IN WRITING SIGNED BY BORROWER AND LENDER.


 


[The remainder of this page is
intentionally left blank, signature page follows.]


 


8

















 


EXECUTED effective as of the date first written above.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  BEHRINGER HARVARD 1875 LAWRENCE,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert S. Aisner

  
	
   

  	
   

  	
  Robert S. Aisner, President and Chief

  
	
   

  	
   

  	
  Executive Officer

  
				



 


9