SECOND AMENDMENT AGREEMENT
Exhibit
10.1
THIS
SECOND AMENDMENT AGREEMENT (this “Agreement”) is made
and entered into effective as of December 21, 2009, by and among BEHRINGER
HARVARD MOCKINGBIRD COMMONS, LLC, a Delaware limited liability company, having
its principal place of business at 00000 Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxx 00000 (“Borrower”), BANK OF
AMERICA, N.A., a national banking association, as Administrative Agent (“Administrative
Agent”) on behalf of itself and certain other Lenders (herein so called)
made a party to the Loan Agreement described below, having an address of 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000 Attention: Real Estate Loan
Administration, and BEHRINGER HARVARD SHORT-TERM OPPORTUNITY FUND I LP, a Texas
limited partnership (“Guarantor”).
PRELIMINARY
STATEMENTS
A. Reference
is hereby made to that certain Construction Loan Agreement dated as of September
6, 2007, executed by and among Borrower, Lenders, and Administrative Agent (as
amended, supplemented or modified from time to time, the “Loan Agreement”),
which Loan Agreement pertains to a $42,000,000.00 construction loan (the “Loan”) from the
Lenders to Borrower to finance, in part, the redevelopment of a hotel currently
known as the “Hotel Palomar on Mockingbird Boulevard” (the ‘‘Improvements”)
located on certain real property in Dallas, Texas (the “Land”). Any
capitalized term used herein and not otherwise defined shall have the meaning
set forth in the Loan Agreement.
B. The
Loan is evidenced by one or more Deed of Trust Notes issued by Borrower in
accordance with the Loan Agreement and made payable to the Lenders, in the
aggregate principal amount of $42,000,000.00 (such notes, as they may hereafter
be renewed, extended, supplemented, increased or modified and in effect from
time to time, and all other notes given in substitution therefor in accordance
with the Loan Agreement, or in modification, renewal, or extension thereof, in
whole or in part, is herein called the “Note”).
C. In
connection with the making of the Loan, Guarantor executed and delivered to
Administrative Agent, on behalf of the Lenders, Guaranty Agreement dated as of
September 6, 2007 (the “Guaranty”).
D. The
Loan is secured, in part, by (i) a Deed of Trust, Security Agreement, Fixture
Filing and Financing Statement dated as of September 6, 2007 (as now or
hereafter amended, modified, supplemented or restated, the “Deed of Trust”),
executed by Borrower to PRLAP, Inc., for the benefit of Administrative Agent, on
behalf of Lenders, recorded as Instrument No. 2007¬0322717 in the
Real Property Records of Dallas County, Texas, covering real property more
particularly described on Exhibit A attached
hereto, and (ii) an Assignment of Rents, Leases and Receivables dated as of
September 6, 2007 (as now or hereafter amended, modified, supplemented or
restated, the “Assignment of
Leases”), executed by Borrower to and for the benefit of Administrative
Agent on behalf of the Lenders, recorded as Instrument No. 2007-
0322719 in the Real Property Records of Dallas County, Texas.
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AMENDMENT AGREEMENT (Behringer Harvard Mockingbird
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E. The
Loan Documents have previously been modified by that certain First Amendment
Agreement dated December 4, 2008, executed by and among Administrative Agent,
Borrower and Guarantor.
F. Guarantor,
Borrower, Administrative Agent and the Lenders have agreed to modify the Loan
Documents in certain respects.
AGREEMENTS
NOW
THEREFORE, in consideration of the premises and the agreements contained herein,
the parties to this Agreement hereby agree as follows:
1. DEFINITIONS. The
following definitions are hereby added to Section 1 of Exhibit B of the Loan
Agreement:
(a) “Excess Cash Flow”
means an amount equal to (i) the actual cash receipts collected by Borrower from
the operation of the Property during the second (2nd)
preceding calendar month, but excluding amounts paid by tenants as security or
other deposits, less (ii) the actual cash operating expenses of the Property
paid to third parties for the operation and maintenance of the Property for the
applicable month, including debt service payments on the Loan and accruals for
periodic expenses such as property taxes and insurance.
(b) “Xxxxxxxxx Loan” means
that certain $9,650,000.00 loan from Bank of America, N.A., as administrative
agent and issuing bank, and the lenders from time to time a party to the
Xxxxxxxxx Loan Agreement to Behringer Harvard Short-Term Opportunity Fund I,
LP.
(c) “Xxxxxxxxx Loan
Agreement” means that certain Credit Agreement dated September 1, 2005,
executed by and between Behringer Harvard Short-Term Opportunity Fund I LP, as
borrower, Behringer Harvard 250/290 Xxxxxxxxx XX, as subsidiary guarantor, and
Bank of America, N.A., as administrative agent, letter of credit issuing agent,
and a lender.
(d) “Xxxxxxxxx Property”
means the property described on Exhibit A of the
Xxxxxxxxx Loan Agreement.
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(e) “Collateral Value
Condition” means (i) if the lien on the Xxxxxxxxx Property securing the
Loan or a guaranty of the Loan has not been released, then (1) the maturity date
of the Xxxxxxxxx Loan shall have been extended to a date that is coterminous
with the maturity date of the Loan as extended, (2) Administrative Agent shall
have received a new Appraisal of the Xxxxxxxxx Property prepared in accordance
with written instructions from Administrative Agent within ninety (90) days
preceding the then existing Maturity Date by a third party appraiser engaged
directly by Administrative Agent, showing that the outstanding principal balance
of the Xxxxxxxxx Loan as of the first day of the Extension Period is not greater
than 50% of the “as is” value of the Xxxxxxxxx Property, and (3) Administrative
Agent shall have received a new appraisal of the Property prepared in accordance
with written instructions from Administrative Agent within ninety (90) days
preceding the then existing Maturity Date by a third party appraiser engaged
directly by Administrative Agent, showing that the outstanding principal balance
of the Loan (A) as of the first day of the first Extension Period, is not
greater than 90% of the “as is” value of the Property, and (B) as of the first
day of the second Extension Period, is not greater than 85% of the “as is” value
of the Property; and (ii) if the lien on the Xxxxxxxxx Property securing the
Loan or a guaranty of the Loan has been released, then Administrative Agent
shall have received a new appraisal of the Property (as defined herein) prepared
in accordance with written instructions from Administrative Agent within ninety
(90) days preceding the existing Maturity Date by a third party appraiser
engaged directly by Administrative Agent, showing that the outstanding principal
balance of the Loan (1) as of the first day of the first Extension Period, is
not greater than 80% of the “as is” value of the Property, and (2) as of the
first day of the second Extension Period, is not greater than 75% of the “as is”
value of the Property.
2. EXTENSION
OF MATURITY DATE. Hereinafter, the term “Maturity Date” and
all other references to the maturity date of the Loan in the Note and the other
Loan Documents shall mean December 21, 2012. The unpaid principal
balance of the Loan, together with all accrued but unpaid interest thereon,
shall be due and payable on the Maturity Date, as extended hereby. Borrower
hereby renews, but does not extinguish, the Note and the liens, security
interests and assignments created and evidenced by the Deed of Trust and the
other Loan Documents, and all of the Loan Documents are hereby renewed and
modified by extending the maturity date thereof as set forth above.
3. LOAN TO
VALUE TEST. Borrower shall provide evidence that, based on new
appraisals prepared in accordance with written instructions from Administrative
Agent to a third party appraiser engaged directly by Administrative Agent, as of
November 30, 2011, either (a) the aggregate of the outstanding principal balance
of the Loan and of the Xxxxxxxxx Loan is not greater than ninety-five percent
(95%) of the sum of the “as-is” value of the Property and of the Xxxxxxxxx
Property, or (b) the outstanding principal balance of the Loan is not greater
than eighty percent (80%) of the “as-is” value of the
Property. Should the above covenant not be achieved, Borrower shall,
within ten (10) Business Days after request by Administrative Agent, make a
principal payment on the Loan in an amount sufficient to comply with either the
ratio set forth in clause (a) of the preceding sentence or the ratio set forth
in clause (b) of the preceding sentence (it being agreed that partial prepayment
on the Loan can be made without premium or penalty except for any Consequential
Losses which may result from such prepayment). Failure to make such
principal payment within ten (10) Business Days of request by
Administrative Agent shall constitute a Default.
4. EXTENSION
OPTIONS. Section 1.12(b) of
the Loan Agreement is hereby amended and restated in its entirety to read as
follows:
“(b) Borrower
shall have two options to extend the Maturity Date of the Loan for a period of
twelve (12) months each (each twelve month period, an “Extension Period”),
at which time the term “Maturity Date” shall mean the Maturity Date, as extended
pursuant to this Section
1.12. The exercise of each extension option shall be effective
only if all of the following conditions have been satisfied as to each extension
on or before the applicable Maturity Date:
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(i) There
shall then exist no Default or Potential Default.
(ii) The
Collateral Value Condition shall be achieved.
(iii) Borrower
shall cause to be delivered to Administrative Agent at Borrower’s expense an
endorsement to the Title Insurance reflecting that the coverage afforded by the
Title Insurance has not been adversely affected as a result of the modification
and extension of the Loan and the documents referred to in paragraph (v)
below.
(iv) Borrower
and Guarantor shall have executed and delivered to Administrative Agent a
modification and extension agreement, providing for, among other things (1) the
extension of the Maturity Date, (2) the reaffirmation by Borrower and Guarantor
of their respective obligations under the Loan Documents, and (3) the waiver and
release by Borrower and Guarantor of any defenses, claims, counterclaims, and
rights of offset, if any, which Borrower or Guarantor may then have in respect
of Administrative Agent and the Indebtedness and Obligations, together with such
other agreements, documents or amendments to the Loan Documents as are
reasonably requested by Administrative Agent to properly document the extension,
all in form and content satisfactory to Administrative Agent in its good faith
business judgment. During any Extension Period, unless noted above,
all terms and conditions of the Loan Documents (including but not limited to
interest rates and payments) pertaining to the Loan shall continue to
apply.
(v) The
request for extension must be made to Administrative Agent in writing not more
than one hundred twenty (120) days, and not less than forty-five (45) days,
prior to the applicable Maturity Date.
(vi) Borrower
shall have paid to Administrative Agent, for the ratable benefit of Lenders, as
a condition to such extension on or before the first day of the applicable
Extension Period, an extension fee of 0.50% of the then Deemed Principal Balance
of the Loan as of the first day of each Extension Period.
(vii) Administrative
Agent shall have determined, in its commercially reasonable judgment, that no
material adverse change has occurred with respect to the Project or the
financial condition or creditworthiness of Borrower or Guarantor.
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If all of
the foregoing conditions are not satisfied strictly in accordance with their
terms, the extension shall not be or become effective. Upon the
execution and delivery by Borrower, Guarantor and Administrative Agent of the
modification and extension agreement referred to in subparagraph (e) above, the
extension shall be deemed to be effective. Each extension option is
exercisable separately only and not together and the second extension option
shall be void and not exercisable unless the first extension option was properly
exercised. Whether or not the extension becomes effective, Borrower
shall pay all out-of-pocket costs and expenses incurred by Administrative Agent
in connection with the proposed extension (pre- and post-closing), including,
without limitation, appraisal fees, environmental audit and legal fees; all such
costs and expenses incurred up to the time of Administrative Agent’s written
agreement to the extension shall be due and payable prior to Administrative
Agent’s execution of that agreement (or if the proposed extension does not
become effective, then upon demand by Administrative Agent).
5. INTEREST
RATE. The definition of “LIBOR Daily Rate” set forth in that
certain First Amendment Agreement dated December 4, 2008, and executed by and
among Borrower, Guarantor and Administrative Agent is hereby amended and
restated in its entirety to read as follows:
“LIBOR Daily Rate”
means a simple rate per annum equal to the sum of the BBA LIBOR Daily Rate plus
(a) 1.75% prior to the earlier of (1) September 1, 2010 and (2) the date
the SWAP Transaction, in existence on the date of this Agreement, terminates and
(b) 3.50% on and following the earlier of (1) September 1, 2010 and (2) the date
the SWAP Transaction, in existence on the date of this Agreement,
terminates.
6. DEFAULT. Section
4.1(h)(ii) and (iii) are hereby amended and restated in their entirety to read
as follows:
“(ii) transfers
of interest in Borrower owned by Realty America Group (Mockingbird Commons), LP,
a Texas limited partnership, and (iii) transfers of interest in Realty America
Group (Mockingbird Commons), LP.”
7. CASH
FLOW. On the 1st
Business Day of each month (the “Calculation Date”)
beginning January 1, 2010, all Excess Cash Flow from the Property will be used
to make a principal payment on the Loan; provided, however, the first
$500,000.00 of Excess Cash Flow will first be deposited in an account (the
“Reserve
Account”) held and controlled by Administrative
Agent. Notwithstanding anything herein to the contrary, the Reserve
Account shall always be funded to $500,000.00 from Excess Cash Flow prior to
using such Excess Cash Flow to make a principal payment on the
Loan. Prior to the occurrence of a Potential Default or a Default,
should the actual cash receipts from the Property (the “Cash Flow”) for such
month not be sufficient to pay the actual cash operating expenses owed to third
parties for the operation and maintenance of the Property (including scheduled
debt service payments on the Loan and expenses such as property taxes and
insurance) (the “Operating Expenses”),
Borrower shall have the right one time per month to request the Administrative
Agent advance funds from the Reserve Account to pay for the difference between
the Operating Expenses and the Cash Flow for such month. On the date
that the Deemed Principal Balance is equal to or less than seventy-five percent
(75%) of the “as is” value of the Property based on the most recent appraisal
ordered by Administrative Agent (the “LTV Test”), (a)
Borrower will cease making monthly principal payments on the Loan in the amount
of the Excess Cash Flow from the prior month, and (b) Borrower will begin making
a quarterly principal payment in the amount of $100,000.00, in addition to the
monthly interest payment that is due pursuant to Section 1.12(a) of
the Loan Agreement, on the first day of each calendar quarter beginning with the
first day of the first calendar quarter following the Property’s satisfaction of
the LTV Test. On or prior to the date of this Agreement, Borrower
shall execute a Security Agreement (Deposit Account), in form and substance
acceptable to Administrative Agent, assigning the Reserve Account to
Administrative Agent.
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8. OPERATING
STATEMENT. Notwithstanding anything to the contrary in the
Loan Agreement, within thirty (30) days after the end of each month, Borrower
shall deliver to Administrative Agent, monthly operating reports in respect of
the Property, which reports shall be in form and substance reasonably acceptable
to Administrative Agent and shall contain, at a minimum, a statement of all
income and expenses in connection with the Property for the month.
9. DSC
PERFORMANCE THRESHOLD. Section 2.13 of the Loan Agreement is
hereby deleted.
10. GUARANTOR
COVENANTS.
(a) Section 18(c) and
Section 18(d)
of the Guaranty are hereby deleted.
(b) Guarantor
shall not make any Distribution or Investments without the prior written consent
of Administrative Agent. As used herein, “Distribution” by any person
means (a) with respect to any stock of any class issued by such person or any
partnership, joint venture or other beneficial ownership or equity interest of
such person, the retirement, redemption, repurchase, or other acquisition for
value of such stock, partnership, joint venture or other equity interest, (b)
the declaration or payment (without duplication) of any dividend or other
distribution, whether monetary or in kind, on or with respect to any stock,
partnership, joint venture or other equity interest of any Person, and (c) any
other payment or distribution of assets of a similar nature or in respect of an
equity investment. As used herein, “Investments ” means with respect
to any person, all shares of capital stock, evidences of debt and other
securities issued by any other person, all loans, advances, or extensions of
credit to, or contributions to the capital of, any other person, all purchases
of the securities or business or integral part of the business of any other
person and commitments and binding options to make such purchases, all interests
in real property, and all other investments; provided, however, that the term
“Investment” shall not include (i) contributions or payments made in respect of
assets or indebtedness (or refinancings of indebtedness) of Guarantor, its
subsidiaries or any entity directly or indirectly controlled by Guarantor
existing as of the date of this Agreement, (ii) equipment, inventory and other
tangible personal property acquired in the ordinary course of business, or (iii)
current trade and customer accounts receivable for services rendered in the
ordinary course of business and payable in accordance with customary trade
terms.
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11. XXXXXXXXX
SECOND LIEN DEED OF TRUST. In order to further secure the
Loan, on or before the date of this Agreement, Borrower shall cause Behringer
Harvard 250/290 Xxxxxxxxx XX to execute a Deed of Trust, Assignment of Rents,
Security Agreement and Fixture Filing (the “Xxxxxxxxx Second Lien Deed
of Trust”) covering and creating a second lien on the Xxxxxxxxx
Property. Borrower shall be entitled to obtain a release of the
Second Lien Deed of Trust prior to the occurrence of Default or Potential
Default if Borrower provides Administrative Agent (on behalf of Lenders) with
substitute collateral (on which Lenders shall have a first and prior lien,
without any other encumbrances) which is acceptable to Administrative Agent in
its sole discretion and which has a value of at least
$10,550,000.00. In addition, Administrative Agent will release the
Xxxxxxxxx Second Lien Deed of Trust so long as no Default or Potential Default
then exists and the Deemed Principal Balance has been reduced to an amount that
is not greater than eighty percent (80%) (except that during the Second
Extension Renewal, such limit shall be seventy-five percent (75%)) of the “as
is” value of the Property based on a new appraisal of the Property prepared in
accordance with written instructions from Administrative Agent and by a third
party appraiser engaged directly by Administrative Agent. It is
hereby expressly agreed that, although the Xxxxxxxxx Property will serve as
additional security for the Loan pursuant to the Xxxxxxxxx Second Lien Deed of
Trust, the converse will not be true; that is, none of the Property or other
assets of Borrower will be collateral for the Xxxxxxxxx Loan. If the
Property is sold and the Loan is paid in full and Lenders’ commitment to make
further advances thereunder is terminated, Behringer Harvard 250/290 Xxxxxxxxx
XX shall be entitled to a release of the Xxxxxxxxx Second Lien Deed of Trust and
Borrower shall be entitled to distribute any remaining sale proceeds to its
members without being required to make payment on the Xxxxxxxxx
Loan. Borrower acknowledges and agrees, and by its execution and
delivery of the Xxxxxxxxx Second Lien Deed of Trust, Behringer Harvard 250/290
Xxxxxxxxx XX is deemed to have acknowledged and agreed, that Behringer Harvard
250/290 Xxxxxxxxx XX will receive substantial direct or indirect benefit
resulting from Lenders’ execution of this Agreement.
12. DESCRIPTION
OF LOAN DOCUMENTS. The term “Loan Documents”, as defined in
the Loan Agreement and as used in the Loan Agreement, the other Loan Documents
and herein, shall be, and hereby is, modified to include this Loan
Amendment. All references to the term “Loan Documents” contained in
the Loan Agreement and the other Loan Documents are hereby modified and amended
wherever necessary to reflect such modification of such term.
13. CONDITIONS
PRECEDENT. As conditions precedent to the effectiveness of
this Agreement, all of the following shall have been satisfied:
(a) Borrower
and Guarantor shall have executed and delivered to Administrative Agent this
Agreement.
(b) Borrower
shall have executed and delivered to Administrative Agent the Security Agreement
(Deposit Account).
(c) Borrower
shall have caused Behringer Harvard 250/290 Xxxxxxxxx XX to execute and deliver
to Administrative Agent (i) a guaranty of the Loan in form and substance
satisfactory to Lender and (ii) the Second Lien Deed of Trust.
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(d) Borrower
shall cause to be delivered to Administrative Agent at Borrower’s expense an
endorsement to the Title Insurance to show that policy coverage has not been
modified or terminated solely by virtue of this Agreement.
(e) Administrative
Agent shall have received and approved all resolutions, certificates or other
documents as Administrative Agent may request relating to the formation,
existence and good standing of Borrower and Guarantor, corporate authority for
the execution and validity of this Agreement, and all other documents,
instruments and agreements and any other matters relevant hereto or thereto, all
in form and substance satisfactory to Administrative Agent.
(f) All
documents required by Bank of America, N.A. relating to the modification of the
Xxxxxxxxx Loan shall have been executed.
14. COSTS,
EXPENSES AND FEES. No later than January 6, 2010, Borrower
shall pay Administrative Agent, for the benefit of Lenders, a nonrefundable
commitment fee in the amount of $412,464.40 in consideration of the extension of
the commitment. Borrower’s failure to pay such fee as herein provided
shall constitute an Event of Default. Borrower hereby agrees to pay
all reasonable attorneys’ fees and other costs and expenses incurred by
Administrative Agent in connection with the preparation, negotiation, execution
and/or recordation of this Agreement.
15. RELEASE
OF CLAIMS. In consideration of, among other things, the
accommodations which Administrative Agent and the Lenders have agreed to extend
for the benefit of Borrower and Guarantor pursuant to this Agreement, each of
Borrower and Guarantor hereby forever waives, releases and discharges any and
all claims (including, without limitation, cross-claims, counterclaims, rights
of setoff and recoupment), causes of action, demands, suits, costs, expenses and
damages that they now have or hereafter may have, of whatsoever nature and kind,
whether known or unknown, whether now existing or hereafter arising, whether
arising at law or in equity (collectively, the “Claims”), against
Administrative Agent, Lenders and their subsidiaries, affiliates, successors,
assigns, officers, directors, employees, agents, attorneys and other
representatives (collectively, the “Released Parties”),
based in whole or in part on facts, whether or not known, existing on or prior
to the date of this Agreement. The acceptance by Borrower and
Guarantor of the accommodations and other consideration provided by
Administrative Agent and the Lenders as set forth in this Agreement, shall
constitute a ratification, adoption and confirmation by Borrower and Guarantor
of the foregoing general release of all Claims against each Released Party which
is based in whole or in part on facts, whether or not now known or unknown,
existing on or prior to the date of receipt of any such proceeds or other
financial accommodations. The provisions of this Section 15 shall
survive the termination of the Loan Documents.
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16. REPRESENTATIONS. Borrower
and Guarantor each hereby severally represents and warrants to Administrative
Agent and the Lenders that (a) to the best of such party’s knowledge, the
execution and delivery of this Agreement does not contravene, result in a breach
of or constitute a default under any deed of trust, loan agreement, indenture or
other contract or agreement to which it/he is a party or by which it or any of
its properties may be bound; (b) this Agreement constitutes the legal, valid and
binding obligation of such party enforceable in accordance with its terms,
subject to the limitations of equitable principles and bankruptcy, insolvency,
debtor relief or other similar laws affecting generally the enforcement of
creditors’ rights; (c) the execution and delivery of, and performance under this
Agreement is within such party’s power and authority without the joinder or
consent of any other party and has been duly authorized by all requisite action
and are not in contravention of law or the provisions of any organizational
documents governing such party or of any indenture, agreement or undertaking to
which Borrower or Guarantor, as applicable, is a party or by which it is bound;
and (d) upon the execution of this Agreement, no Default or Event of Default
shall exist under any Loan Document.
17. RATIFICATION. The
parties to this Agreement agree that the terms and provisions of this Agreement
shall modify and supersede all inconsistent terms and provisions of the Loan
Agreement and the other Loan Documents and, except as expressly modified and
superseded by this Agreement, the terms and provisions of the Loan Agreement and
the other Loan Documents are ratified and confirmed and shall continue in full
force and effect. The liens, security interests, collateral
assignments and financing statements in respect of the Loan are hereby ratified
and confirmed as valid, subsisting and continuing to secure the Loan
Documents. Nothing herein shall in any manner diminish, impair or
extinguish the Note or any of the other duties, liabilities and obligations of
Borrower under the Loan Documents. Borrower hereby ratifies and
acknowledges that the Loan Documents are valid, subsisting and enforceable
against Borrower and Borrower agrees and warrants to Administrative Agent and
the Lenders that there are no offsets, claims or defenses with respect to any of
the duties, liabilities and obligations of Borrower under the Loan
Documents.
18. CONSENT
AND RATIFICATION. Guarantor hereby unconditionally and
irrevocably acknowledges and agrees that the Guaranty and Guarantor’s
obligations, covenants, agreements and duties thereunder remain in full force
and effect in accordance with its terms, notwithstanding the modifications
effected hereby. Guarantor hereby unconditionally and irrevocably
ratifies, reaffirms and confirms the Guaranty and its obligations
thereunder.
19. NON-WAIVER
OF RIGHTS, REMEDIES, CLAIMS AND DEFENSES. This Agreement in no
way constitutes or shall be deemed (i) a release or relinquishment of any of the
liens and security interests created pursuant to the Loan Documents, and
Borrower and Guarantor, hereby expressly acknowledge and agree that all such
liens and security interests are and shall remain valid and subsisting, and
superior to all liens and security interests other than those exceptions
heretofore expressly approved by Lenders or their predecessors, (ii) a waiver
of, or consent by Lenders to, any default or event of default which may exist or
hereafter occur under any of the Loan Documents, or (iii) a waiver of any of
Borrower’s obligations under any of the Loan Documents.
20. COUNTERPARTS. This
Agreement may be executed in any number of counterparts with the same effect as
if all parties hereto had signed the same document. All such
counterparts shall be construed together and shall constitute one instrument,
but in making proof hereof it shall only be necessary to produce one such
counterpart.
21. BINDING
EFFECT. The terms and provisions hereof shall be binding upon
and inure to the benefit of the parties hereto, their representatives,
successors and assigns.
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22. HEADINGS. The
Section headings in this Agreement are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement or any
provision hereof.
23. APPLICABLE
LAW. This Agreement shall be construed in accordance with the
laws of the State of Texas and the laws of the United States applicable to
transactions in the State of Texas.
24. PRIOR
UNDERSTANDINGS. This Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof, and
supersedes all prior understandings and agreements, written or
oral.
THE
WRITTEN 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.
(REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK)
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above
written.
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ADMINISTRATIVE
AGENT:
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BANK
OF AMERICA, N.A., a national banking
association,
as Administrative Agent
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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 DALLAS
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§
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This
instrument was acknowledged before me on this _________ day of December, 2009,
by __________________________________________________, ________________________
of Bank of America, N.A., a national banking association,
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Printed
Name of Notary
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My
Commission Expires:
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SECOND
AMENDMENT AGREEMENT (Behringer Harvard Mockingbird
Commons)
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Signature
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Exhibit
10.1
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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, a Texas limited liability company,
its
Manager
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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 DALLAS
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§
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This
instrument was acknowledged before me on the ______ day of December, 2009, by
_____________________________________________________, ______________________ of
Behringer Harvard Mockingbird Commons GP, LLC, a Texas limited liability
company, as manager of Behringer Harvard Mockingbird Commons, LLC, a Delaware
limited liability company, on behalf of said limited liability
companies.
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Printed
Name of Notary
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My
Commission Expires:
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SECOND
AMENDMENT AGREEMENT (Behringer Harvard Mockingbird
Commons)
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Signature
Page
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Exhibit
10.1
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GUARANTOR:
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BEHRINGER
HARVARD SHORT-TERM
OPPORTUNITY
FUND I LP, a Texas limited
partnership
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By:
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Behringer
Harvard Advisors II LP,
a
Texas limited partnership,
its
general partner
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By:
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Harvard
Property Trust, LLC,
a
Delaware limited liability company,
its
general partner
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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 DALLAS
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§
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This
instrument was acknowledged before me on this ___________ day of December, 2009,
by ___________________, _______________________ of Harvard Property Trust, LLC,
a Delaware limited liability company, general partner of Behringer Harvard
Short-Term Opportunity Fund I LP, a Texas limited partnership, on behalf of said
company and limited partnerships.
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Printed
Name of Notary
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My
Commission Expires:
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SECOND
AMENDMENT AGREEMENT (Behringer Harvard Mockingbird
Commons)
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Signature
Page
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Exhibit
10.1
Exhibit
A
Legal
Description
BEING:
(i)
certain condominium units of M CENTRAL MASTER CONDOMINIUM, as described in that
certain MASTER CONDOMINIUM DECLARATION FOR. M CENTRAL MASTER CONDOMINIUM, filed
September 16, 2005, recorded in Volume 2005182, Page 00111, Condominium Records
of Dallas County, Texas (the “Master Condominium Declaration”),
and being the following Units: the Hotel Unit, the Retail Unit, the Hotel Room
Units and certain Sub-Units described in (ii) below, and which are more
particularly described in the Map (as defined in the Master Condominium
Declaration), together with all General Common Elements and Limited Common
Elements (as defined in the Master Condominium Declaration) appurtenant thereto
and all other rights, title and Interest appurtenant thereto under the Master
Condominium Declaration,
together
with
(ii)
certain condominium units of M CENTRAL RESIDENCES, A CONDOMINIUM, as described
in that certain RESIDENTIAL CONDOMINIUM DECLARATION FOR M CENTRAL RESIDENCES, A
CONDOMINIUM (the “Residential Condominium Declaration”),
filed September 16, 2005, recorded in Volume 2005182, Page 00204, Condominium
Records of Dallas County, Texas, which is a Sub-Unit Declaration and creates a
Sub-Unit Condominium, and being the following Residences designated in Exhibit C
to the Residential Condominium Declaration: Xxxx 000, Xxxx 000, Xxxx 000 and the
Penthouse in Hotel Tower, and which are more particularly described in the
Residential Map (as defined in the Residential Condominium Declaration),
together with all Residential Common Elements (as defined in the Residential
Condominium Declaration) appurtenant thereto and all other rights, title and
interest appurtenant thereto under the Residential Condominium
Declaration.
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EXHIBIT
A - SECOND AMENDMENT AGREEMENT (Behringer Harvard Mockingbird
Commons)
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Page
1
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