Exhibit 10.1
AMENDED AND RESTATED UNSECURED
PROMISSORY NOTE
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March 27, 2008
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Up to $20,000,000
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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.
