Attached files
| file | filename |
|---|---|
| 10-K - Behringer Harvard Short-Term Liquidating Trust | v178720_10k.htm |
| EX-31.2 - Behringer Harvard Short-Term Liquidating Trust | v178720_ex31-2.htm |
| EX-32.1 - Behringer Harvard Short-Term Liquidating Trust | v178720_ex32-1.htm |
| EX-31.1 - Behringer Harvard Short-Term Liquidating Trust | v178720_ex31-1.htm |
| EX-21.1 - Behringer Harvard Short-Term Liquidating Trust | v178720_ex21-1.htm |
Exhibit
10.44
FOURTH
AMENDED AND RESTATED UNSECURED PROMISSORY NOTE
|
November 13, 2009
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Up to $40,000,000
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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 a
grid in substantially the form of Exhibit A hereto as is maintained by the
Lender equal to the outstanding amount of the Advances (as hereinafter defined),
up to a maximum of Forty Million Dollars ($40,000,000) 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 Fourth Amended and Restated Promissory Note (this “Note”)
amends and restates in its entirety that certain Third Amended and Restated
Unsecured Promissory Note dated August 12, 2009 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 an Advance be made such that there will be in
excess of forty million dollars ($40,000,000) 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.
2
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 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 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.
4
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
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.
5
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.
6
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:
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|||
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Gerald
J. Reihsen, III
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Gerald
J. Reihsen, III
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|||
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Executive
Vice President
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Secretary
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By:
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||
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Robert
M. Behringer, Co-General
Partner
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7
EXHIBIT
A
LOANS AND PAYMENTS OF
PRINCIPAL
|
Date
|
Amount of
Loan
or Principal
Paid
|
Interest Paid
|
Unpaid
Principal
Balance
|
Notation
Made By
|
||||
8