FOURTH AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENT
Exhibit
10.1
FOURTH AMENDMENT
TO
This
FOURTH AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENT (this "Amendment")
is made to be effective as of _______________ _____, 2010 (the "Amendment
Effective Date") by and between BEHRINGER HARVARD MOCKINGBIRD COMMONS,
LLC, a Delaware limited liability company (successor in interest by merger to
Behringer Harvard Mockingbird Commons, LP, a Texas limited partnership) ("Borrower"),
and CREDIT UNION LIQUIDITY SERVICES, LLC, a Texas limited liability company
f/k/a TEXANS COMMERCIAL CAPITAL, LLC ("Lender").
WHEREAS,
Borrower and Lender entered into that certain Construction Loan Agreement dated
as of September 30, 2005, pursuant to which Lender loaned to Borrower (the
"Loan")
up to the principal sum of $34,047,458.00 (as amended, the "Loan
Agreement") as further evidenced by one certain promissory note dated as
of September 30, 2005 in the original principal amount of $34,047,458.00,
executed by Borrower and payable to the order of Lender (as amended, the "Note");
and
WHEREAS,
as security for the obligations of Borrower under the Loan Agreement and the
Note, Borrower executed and delivered to Lender, among other things, (i) that
certain Amended and Restated Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rental, dated September 30, 2005, executed by
Borrower to Xxxx X. Xxx and/or Xxxx X. X’Xxxx, as trustee for the benefit of
Lender, covering the property described therein and recorded October 4, 2005 as
Instrument No. 200503532798, Official Records of Dallas County, Texas (as
amended, the "Deed of
Trust"); (ii) that certain Absolute Assignment of Leases and Rents from
Borrower to Lender, dated September 30, 2005, covering the property described
therein and recorded as Instrument No. 200503532799, Official Records of Dallas
County, Texas (the "Assignment");
and (iii) that certain Second Deed of Trust, Security Agreement, Financing
Statement, and Assignment of Rental ("Second
Deed of Trust") executed by Behringer Harvard Mountain Village, LLC, as
grantor, and Borrower, as borrower, filed October 29, 2009 as Reception No.
409591 in the official public records of San Xxxxxx County, Colorado,
re-recorded on November 9, 2009 as Reception No. 409756 in the official public
records of San Xxxxxx County, Colorado; and
WHEREAS,
Borrower and Lender executed that certain First Amendment to Note and
Construction Loan Agreement dated as of September 24, 2008 (the "First
Amendment"), that certain Second Amendment to Construction Loan Agreement
dated as of March 20, 2009 (the "Second
Amendment"), and that certain Third Amendment to Note and Construction
Loan Agreement dated as of October 1, 2009 (the "Third
Amendment"); and
WHEREAS,
in connection with the Loan, Behringer Harvard Mockingbird Commons GP, LLC, a
Texas limited liability company, and Behringer Harvard Short Term Opportunity
Fund I, LP, a Texas limited partnership (each a "Guarantor"
and collectively the "Guarantors")
entered into those certain Guaranty Agreements dated as of September 30, 2005
(as amended, the "Guaranty
Agreements"); and
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
WHEREAS,
the Loan Agreement, Note, Deed of Trust, Assignment, Second Deed of Trust,
Guaranty Agreements and any and all other documents evidencing and/or securing
the indebtedness described in the Note, as same may have been previously
amended, are referred to collectively as the "Loan
Documents"; and
WHEREAS,
Borrower and Lender have agreed to make certain changes to the Loan Documents,
and desire to enter into this Amendment to document such changes;
NOW
THEREFORE, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Borrower and Lender agree as follows:
1. Defined
Terms. Each capitalized term used but not defined herein has
the meaning assigned to such term in the Loan Agreement or the other Loan
Documents.
2. Amendment. Section
9 of the Third Amendment is hereby amended to delete the reference to "September
30, 2010" and insert a reference to "January 15, 2011" in lieu
thereof.
3. Principal
Payment. As a condition precedent to the effectiveness of this
Amendment, Borrower shall on the Amendment Effective Date, make a mandatory
prepayment on the Loan of One Hundred Thousand and No/100 Dollars
($100,000).
4. Further
Amendments. Any and all of the terms and provisions of the
Loan Documents are hereby amended and modified wherever necessary, and even
though not specifically addressed herein, so as to conform to the modifications
set forth herein.
5. Confirmation of Loan
Documents. Borrower and Guarantors covenant, represent, and
warrant to Lender as follows:
(a) The
principal balance of the Loan as of the Amendment Effective Date, but prior to
giving effect to the prepayment contemplated by Section 3, is Twenty-four
Million Nine Hundred Fifty Thousand One Hundred One and 06/100 Dollars
($24,950,101.06).
(b) Neither
Borrower nor any Guarantor has any defenses, counter-claims or offsets to the
Note, Deed of Trust, or any other Loan Document, as modified
herein;
(c) Borrower
and each Guarantor waive any and all defenses, counter-claims, or offsets to the
enforcement of the Note, Deed of Trust, Guaranty Agreements, or any other Loan
Document, as modified, renewed, and extended herein, whether known or unknown;
and
(d) The
Note, Deed of Trust, Guaranty Agreements, and all other Loan Documents, as
modified, renewed, and/or extended herein, are in full force and
effect.
6. Confirmation of Liens and
Security Interests. Borrower hereby renews and confirms the
liens, security interests, and rights of any and all security for the Note
(including, without limitation, the liens, security interests, and rights of the
Deed of Trust), which are hereby acknowledged by Borrower to be valid and
subsisting against the Property.
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
7. Borrower’s
Representations. Borrower and Guarantors represent and warrant
to Lender, and covenant and agree with Lender, as follows:
(a) Borrower
and each Guarantor have the power and requisite authority to execute, deliver,
and perform their obligations hereunder and under the Loan Documents, and are
duly authorized, and have taken all necessary action to authorize such persons
or entities to execute, deliver and perform this Amendment, the other documents
executed in connection herewith (if any) and the Loan Documents and will
continue to be duly authorized to perform their obligations under such
agreements.
8. Release. Effective
as of the Amendment Effective Date, and in consideration for this Amendment and
all documents executed herewith, Borrower and Guarantors agree as
follows:
A. For
the time period existing on and prior to the Amendment Effective Date and
relating exclusively to the Loan Documents and the loan memorialized therein,
Borrower and Guarantors fully and finally release and discharge Lender (and its
officers, directors, shareholders, representatives, employees, agents, and
attorneys) of and from any and all defaults, potential defaults occurring on or
prior to the Amendment Effective Date, claims, damages or causes of action to,
of or for the benefit (whether directly or indirectly) of, Borrower or any
Guarantor, at law or in equity, known or unknown, contingent or otherwise,
whether asserted or unasserted, whether statutory, in contract or in tort, as
well as any other kind or character of action now held, owned or possessed
(whether directly or indirectly) by Borrower or any Guarantor on account of,
arising out of, related to or concerning, whether directly or indirectly,
proximately or remotely, the Loan Documents and accruing or relating to the
period prior to the Amendment Effective Date (collectively, the "Released
Claims");
B.
In addition to the release set
forth above, and not in limitation thereof, Borrower and each Guarantor each
agree that it or he will never prosecute, or voluntarily (unless required by
law) aid in the prosecution of, any of the Released Claims, whether by claim,
counterclaim or otherwise.
9. Lender’s
Representations. Lender represents and warrants to Borrower as
follows:
(a) Lender
has the power and requisite authority to execute, deliver and perform its
obligations hereunder and is duly authorized, and has taken all necessary action
to authorize the person executing this Amendment, to execute and deliver this
Amendment.
10. Expenses of
Lender. Borrower shall be responsible for all of Lender's
costs and expenses incurred in connection with the preparation, negotiation and
execution of this Amendment, the other documents executed pursuant hereto and
any additional costs and expenses incurred in connection herewith, which fees
must be paid by Borrower to Lender as a condition precedent to the effectiveness
of this Amendment.
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
11. Joinder of
Guarantors. Each Guarantor hereby (i) consents to the
execution of this Amendment and acknowledges and consents to the terms and
provisions hereof, (ii) ratifies, confirms and agrees that there are no
claims or offsets against, or defenses or counterclaims to, the terms and
provisions of, and the obligations created and evidenced by, the Note or the
Guaranty executed by such Guarantor, and (iii) certifies that the
representations and warranties contained herein are, in all material respects,
true and correct representations and warranties as of the date
hereof. The provisions set forth in Section 23 of the Guaranty
executed by Behringer Harvard Mockingbird Commons GP, LLC and in Section 24 of
the Guaranty executed by Behringer Harvard Short Term Opportunity Fund I, LP are
hereby specifically confirmed as being in full force and effect.
12. Counterparts. This
Amendment may be executed in any number of counterparts, all of which taken
together shall constitute one and the same agreement, and any of the parties
hereto may execute this Amendment by signing any such
counterpart. Facsimile or electronic signatures shall be effective as
originals.
13. Modification. This
Amendment cannot be changed except by an instrument in writing signed by the
party against whom the enforcement of any change is sought. THIS
AMENDMENT AND THE LOAN DOCUMENTS REPRESENT 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 UNWRITTEN
ORAL AGREEMENTS BETWEEN THE PARTIES.
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CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
EXECUTED
as of the Amendment Effective Date.
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BORROWER:
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BEHRINGER
HARVARD MOCKINGBIRD COMMONS,
LLC, a Delaware limited
liability company
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By:
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Behringer
Harvard Mockingbird Commons GP, LLC,
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a
Texas limited liability company,
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its
manager
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By:
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Xxxx
X. Xxxxxx
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Chief
Financial Officer
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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This
instrument was acknowledged before me on this ___ day of _________________,
201__, by Xxxx X. Xxxxxx, as Chief Financial Officer of Behringer Harvard
Mockingbird Commons GP, LLC, a Texas limited liability company, in its capacity
as the manager of Behringer Harvard Mockingbird Commons, LLC, a Delaware limited
liability company, on behalf of said manager acting on behalf of said limited
liability company.
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Notary
Public in and for the State of
Texas
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(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
EXECUTED
as of the Amendment Effective Date.
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LENDER:
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CREDIT
UNION LIQUIDITY SERVICES,
LLC, a Texas limited
liability company
(formerly
known as Texans Commercial
Capital)
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By:
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Name:
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Title:
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STATE
OF TEXAS
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§
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§
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COUNTY
OF _________
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§
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On this
_____ day of _______________ 201__, before me, the undersigned Notary Public in
and for the State of ____________, personally appeared _________________________
to me personally known who being by me duly sworn did say that s/he is the
_________________________ of Credit Union Liquidity Services, LLC, a Texas
limited liability company, executing the foregoing instrument, that the
instrument was signed on behalf of the limited liability company by authority of
the limited liability company; and said _________________________ acknowledged
the execution of the instrument to be the voluntary act and deed of the limited
liability company.
Witness
my hand and official seal.
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Notary
Public
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My
commission expires:___________________
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
Guarantors
expressly consent and agree to the modifications and terms contained in this
Amendment:
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GUARANTOR:
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BEHRINGER
HARVARD MOCKINGBIRD COMMONS GP, LLC
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a
Texas limited liability company
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By:
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Xxxx
X. Xxxxxx
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Chief
Financial Officer
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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This
instrument was acknowledged before me on this ___ day of
__________________________, 201__, by Xxxx X. Xxxxxx, as Chief Financial Officer
of Behringer Harvard Mockingbird Commons GP, LLC, a Texas limited liability
company, on behalf of said limited liability company.
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Notary
Public in and for the State of
Texas
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(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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Exhibit
10.1
Guarantors
expressly consent and agree to the modifications and terms contained in this
Amendment:
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GUARANTOR:
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BEHRINGER
HARVARD SHORT-TERM OPPORTUNITY FUND I LP
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a
Texas limited partnership
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By:
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Behringer
Harvard Advisors II LP,
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a
Texas limited partnership,
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its
general partner
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By:
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Harvard
Property Trust, LLC
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a
Delaware limited liability company,
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its
general partner
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By:
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Xxxx
X. Xxxxxx
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Chief
Financial Officer
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STATE
OF TEXAS
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§
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§
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COUNTY
OF DALLAS
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§
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This
instrument was acknowledged before me on this ___ day of
____________________________, 201__, by Xxxx X. Xxxxxx, as Chief Financial
Officer of Harvard Property Trust, LLC, a Delaware limited liability company, in
its capacity as the general partner of Behringer Harvard Advisors II LP, a Texas
limited partnership, in its capacity as the general partner of Behringer Harvard
Short-Term Opportunity Fund I LP, a Texas limited partnership, for and on behalf
of said entities.
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Notary
Public in and for the State of
Texas
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(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Fourth
Amendment to Note and Loan Agreement
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