THIRD AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENT
Exhibit
10.1
THIRD AMENDMENT
TO
This
THIRD AMENDMENT TO NOTE AND CONSTRUCTION LOAN AGREEMENT (this “Amendment”) is made as of October 1,
2009 (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”) and (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
WHEREAS,
Borrower and Lender executed that certain First Amendment to Note and
Construction Loan Agreement dated as of September 24, 2008 (the “First
Amendment”) and that certain Second Amendment to Construction Loan
Agreement dated as of March 20, 2009 (the “Second
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;
and
WHEREAS,
the Loan Agreement, Note, 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
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Exhibit 10.1
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. Leasing. Borrower
shall be permitted to lease units of the Residential Condominium on terms
acceptable to the Lender in its reasonable discretion, provided, however, that (i)
no lease shall be for a term longer than twenty-four (24) months, (ii) each
lease shall be documented on the standard lease form for residential leases in
the State of Texas (it being agreed that the form promulgated by the Texas
Apartment Association is a standard lease form), (iii) the rental rate for
each lease shall be normal and customary for similar units in the same
geographic location as the Property, (iv) Borrower shall submit each proposed
lease to Lender for review at least five (5) Business Days prior to execution of
such lease by Borrower, and (v) each lease shall be executed in strict
compliance with the Master Declaration and Residential Condominium Declaration,
as the same may be amended from time to time, including without limitation
Section 3.2(a) of the Residential Condominium Declaration. Whenever
Borrower submits a lease for review to Lender, Lender may respond in writing
with any concerns it has with respect to such lease within five (5) Business
Days after such submission. If Lender fails to respond to such
submission within such five (5) Business Day period, then Lender shall be deemed
to have approved the submitted lease. If Lender disapproves any lease
submitted by Borrower, Lender shall advise Borrower in writing of its reasons
for such disapproval. Upon execution of this Amendment, Lender shall
be deemed to have approved (to the extent that it has not already done so) the
leases listed on Exhibit
A attached hereto and made a part hereof.
3. Possible Build-Out of Ninth
and Ground Floors.
(a) If
Borrower elects to commence the build-out of the ground and/or ninth floors of
the Residential Condominiums (the “Build-Out
Improvements”), then Borrower shall promptly notify Lender of such
decision in writing. Promptly after such notification, Borrower shall
submit to Lender the following for approval by Lender in its reasonable
discretion: (i) final working drawings and specifications for the construction,
renovation or reconstruction of the Build-Out Improvements (the “Build-Out
Plans”), (ii) a budget or cost itemization specifying the cost by item of
(x) all labor, materials, and services necessary for the construction of the
Build-Out Improvements in accordance with the Build-Out Plans and all
Governmental Requirements, and (y) all other expenses anticipated by Borrower
incident to the construction of the Build-Out Improvements (the “Build-Out
Budget”), and (iii) the proposed construction contract for the Build-Out
Improvements (the “Build-Out
Contract”) (it being agreed that the Build-Out Contract will not be
executed by Borrower until same is approved (or deemed approved) by
Lender). Whenever Borrower has submitted all of the Build-Out Plans,
Build-Out Budget and Build-Out Contract to Lender, Lender shall respond in
writing with any concerns it has with respect to such items within thirty (30)
days after such submission. If Lender fails to respond to such
submission within such thirty (30) day period, then Lender shall be deemed to
have approved the submitted item in all respects. If Lender
disapproves any such item submitted by Borrower, Lender shall advise Borrower in
writing of its reasons for such disapproval. The thirty (30) day
period described in this clause (d) may be extended an additional fifteen (15)
days (i.e. a total period of forty five (45) days) by Lender upon written notice
to Borrower.
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Exhibit 10.1
(b) Once
the Build-Out Plans, Build-Out Budget and Build-Out Contract have been approved
by Lender, and once Borrower has delivered to Lender an executed Assignment of
Plans and Specifications and executed Assignment of Rights under Construction
Contract (in each case in a similar form as was delivered in connection with the
Loan Agreement), then Borrower shall deposit into a pledged reserve account (the
“Build-Out
Reserve Account”) at Texans Credit Union an amount of cash equal to the
total amount required to construct the Build-Out Improvements as shown in the
Build-Out Budget. Borrower agrees to sign a Blocked Account Control
Agreement in form and substance consistent with the Blocked Account Control
Agreement executed by Borrower in connection with the Deposit Account described
in Section 5 hereof. Funds shall be advanced from the Build-Out
Reserve Account pursuant to Section 4 hereof. Alternatively, Borrower
may deposit into the Build-Out Reserve Account cash in the amount of at least
Five Hundred Thousand Dollars ($500,000.00) and deliver to Lender a letter of
credit for the balance of the total amount required to construct the Build-Out
Improvements as shown in the Build-Out Budget, in which event the provisions of
Exhibit
B shall be applicable.
4. Advances from Build-Out
Reserve Account.
(a) Definitions. The
following terms have the respective meanings assigned to them:
“Build-Out
Advance” means a disbursement by Lender of any of the funds in the
Build-Out Reserve Account, and “Build-Out
Advances” shall be the plural thereof.
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Exhibit 10.1
“Application
for Build-Out Advance” shall mean a written application submitted by the
Borrower’s Architect and Borrower on American Institute of Architects form G 702
and/or G 703, as appropriate, or such other form as Lender may hereafter
reasonably request which shall: (a) request a Build-Out Advance, (b)
specify by name, current address and amount owed, all parties to whom Borrower
is obligated for labor, materials or services actually furnished for the
construction of the particular part of the Build-Out Improvements which are the
subject matter of such application, (c) certify among other things that such
amounts represent payments due for services or labor actually rendered or
materials actually acquired or furnished in connection with construction of the
Build-Out Improvements, (d) state whether the sum requested is within the
approved Build-Out Budget and whether, in the opinion of the Architect and
Borrower, the unadvanced funds in the Build-Out Reserve Account and the
remaining LOC, if applicable, is sufficient to complete the Build-Out
Improvements pursuant to the approved Build-Out Plans and to pay for all labor,
material, interest and other expenses in connection with the construction of the
Build-Out Improvements, (e) if requested by Lender, be accompanied by
copies of billing statements, vouchers or invoices from the parties named
therein, in form satisfactory to Lender, (f) refer to an attached schedule,
verified by the Architect, and the Inspecting Architect/Engineer, identifying in
a manner satisfactory to Lender all materials not yet affixed or incorporated
into the Build-Out Improvements but which have been covered by certificates
submitted to date, including the current certificate, (g) contain a statement,
verified by the Architect and the Inspecting Architect/Engineer, that all such
materials not yet affixed or incorporated into the Build-Out Improvements have
been stored upon the Land under adequate safeguards to minimize the possibility
of loss, damage or commingling with other materials or projects, (h) be
accompanied by appropriate waivers of lien rights reasonably satisfactory to
Lender executed by all contractors, subcontractors, laborers, and materialmen
who have furnished to the Property labor or material, provided, however, that
Borrower shall not be obligated to obtain and deliver such lien waivers from
subcontractors, laborers or materialmen if (aa) such subcontractor, laborer or
materialmen has furnished labor or material costing less than $10,000.00, and
(bb) the aggregate total of all labor and materials for which lien waivers
are not obtained pursuant to the preceding clause (aa) does not exceed
$50,000.00 in the aggregate including all other lien waivers not obtained in
connection with prior applications, (i) certify that all labor and material
bills of every kind and character incurred by Borrower to the date of such
certificate in connection with the Build-Out Improvements have been paid in
accordance with the payment provisions of each contract except for the unpaid
bills to be paid from the proceeds of the current Build-Out Advance requested
and items to be retained hereunder, and (j) certify that the Builder’s Risk
Insurance contains sufficient coverage for the construction of the Build-Out
Improvements.
(b) Build-Out
Advances. Subject to the terms and conditions hereof and
relying upon the representations and warranties herein set forth and in the Loan
Agreement, and provided that no Potential Default or Event of Default has
occurred and is continuing, Lender agrees to make Build-Out Advances to Borrower
from time to time as set forth in this Amendment. The Build-Out
Advances for which Borrower qualifies hereunder shall be made from time to time
after establishment and initial funding of the Build-Out Reserve Account to and
including the Maturity Date.
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Exhibit 10.1
(c) Timing of Build-Out
Advances. Build-Out Advances for the payment of the cost of
labor, materials, and services supplied for the construction of the Build-Out
Improvements shall be made by Lender upon compliance by Borrower with the terms
and conditions contained in this Amendment after actual commencement of
construction of the Build-Out Improvements for work actually done during the
preceding period. Notwithstanding the foregoing sentence, upon
satisfaction of the other terms and conditions to Build-Out Advances contained
in this Amendment, Borrower shall be entitled to receive Build-Out Advances for
payment of planning costs in respect of the Build-Out Improvements (including,
without limitation, architectural, engineering and contractor costs incurred in
the planning stage of the Build-Out Improvements) before actual commencement of
construction to a maximum of $200,000.00 in the aggregate. From time
to time, but no more frequently than monthly, Borrower may submit to Lender an
Application for Build-Out Advance requesting a Build-Out Advance from the
Build-Out Reserve Account for the payment of the cost of labor, materials, and
services supplied for the construction of the Build-Out Improvements and for the
payment of other costs and expenses incident to the construction of the
Build-Out Improvements and specified in the approved Build-Out
Budget. Lender may require an inspection of, and favorable report on,
the Build-Out Improvements by the Inspecting Architect/Engineer prior to making
any Build-Out Advance. Each Application for Build-Out Advance shall
be submitted by Borrower to Lender a reasonable time (but not less than five (5)
Business Days) prior to the date upon which the Build-Out Advance requested is
desired by Borrower. Borrower shall be entitled to a Build-Out
Advance only in an amount reasonably approved by Lender. After Lender
has received an Application for Build-Out Advance and all supporting
documentation, Lender shall respond thereto within five (5) Business
Days.
(d) Limitation on
Advances. Advances for payment of the cost of construction of
the Build-Out Improvements shall not exceed the aggregate of (i) the cost of
labor, materials, and services incorporated into the Build-Out Improvements in a
manner reasonably acceptable to Lender and as specified in the approved
Build-Out Budget (which may be amended from time to time upon the request of
Borrower and with the reasonable approval of Lender), plus (ii) the
purchase price of all uninstalled materials to be utilized in the construction
of the Build-Out Improvements and stored upon the Property, or elsewhere with
the written consent of, and in a manner reasonably acceptable to, Lender, less
(iii) retainage of not less than ten percent (10%) (except with respect to
the final Build-Out Advance), and less (iv) all
prior Build-Out Advances made for payment of the cost of labor, materials, and
services for the construction of the Build-Out Improvements.
(e) Final Build-Out
Advance. The final Build-Out Advance, including all retainage, will not
be made until the expiration of thirty (30) days from the date of final
completion of the Build-Out Improvements, and in any event not until Lender has
received the following with respect to the Build-Out Improvements and the Loan;
(i) a certificate from the Inspecting Architects/Engineers certifying to Lender
that the Build-Out Improvements have been completed substantially in accordance
with the Build-Out Plans, (ii) evidence that no mechanic’s or materialman’s
liens or other encumbrances have been filed and remain in effect against the
Improvements, (iii) evidence reasonably satisfactory to Lender that all
Governmental Requirements have been satisfied, including without limitation,
delivery to Lender of a Certificate of Occupancy permitting the Improvements to
be legally occupied, and (iv) a liens paid affidavit executed by Borrower and
the Contractor to the effect that (and/or, at Lender’s request, final lien
releases or waivers evidencing to Lender’s reasonable satisfaction that) all
subcontractors, materialmen, and other parties who have supplied labor,
materials, or services for the construction of the Build-Out Improvements, or
who otherwise might be entitled to claim a contractual, statutory, or
constitutional lien against the Property, have been paid in full with respect to
the Improvements, or Borrower, at its option, may provide to Lender a Bond
indemnifying Against Liens (pursuant to Tex. Property Code §53.171) in such
amount as Lender may reasonably require.
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Exhibit 10.1
(f) Conditions Precedent for the
Benefit of Lender. All conditions precedent to the obligation
of Lender to make any Build-Out Advance are imposed hereby solely for the
benefit of Lender, and no other party may require satisfaction of any such
condition precedent or be entitled to assume that Lender will refuse to make any
Build-Out Advance in the absence of strict compliance with such conditions
precedent. All requirements of this Amendment or the Loan Agreement
may be waived by Lender, in whole or in part, at any time in Lender’s sole
discretion.
(g) Conditions to Build-Out
Advances. As a condition precedent to each Build-Out Advance
from the Build-Out Reserve Account, Borrower must satisfy the conditions
required hereunder and execute and deliver to, procure for and deposit with, and
pay to Lender, and if appropriate, record in the proper records with all filing
and recording fees paid, the documents, certificates, and other items described
herein:
(i) Governmental
Approvals. Evidence, in form and substance reasonably
satisfactory to Lender, that the Build-Out Improvements, after completion of
construction, will comply with the Americans with Disabilities Act of 1990, Pub.
L. No. 89-670, 104 Stat. 327 (1990), as amended, and all regulations promulgated
pursuant thereto to the extent compliance is required.
(ii) Borrower
shall have delivered to Lender the following:
(1) the
Build-Out Plans;
(2) the
Construction Contract for the Build-Out Improvements, executed by all
parties;
(3) the
Contractor’s Affidavit and Subordination, executed by Contractor;
(4) the
Assignment of Plans and Specifications with respect to the Build-Out Plans,
executed by Borrower and acknowledged and consented to by the
Architect;
(5) the
Assignment of Rights under Construction Contact, executed by
Borrower;
(6) a
building permit for the construction of the Build-Out Improvements and all
related amenities; and
(7) the
approved Build-Out Budget;
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Exhibit 10.1
(iii) There
shall exist no Event of Default or Potential Default;
(iv) The
representations and warranties made in the Loan Agreement (as the same may have
been subsequently modified in writing or as modified on Schedule 1
hereof ) shall be true and correct on and as of the date of each Build-Out
Advance, with the same effect as if made on such date;
(v) If
any agreement or other instrument binding upon Borrower requires that a consent
of any third party be obtained before Borrower may execute, deliver or perform
this Amendment or any Loan Document executed by such party, then such consent
shall be delivered to Lender;
(vi) Borrower
shall procure and deliver to Lender, the Inspecting Architect/Engineer and the
Title Company releases or waivers of mechanic’s liens and receipted bills
showing payment to all parties who have furnished materials or services or
performed labor of any kind in connection with the construction of any of the
Build-Out Improvements; provided, however, that
Borrower shall not be obligated to obtain and deliver such lien waivers from
subcontractors, laborers or materialmen if (aa) such subcontractor, laborer or
materialmen has furnished labor or material costing less than $10,000.00, and
(bb) the aggregate total of all labor and materials for which lien waivers are
not obtained pursuant to the preceding clause (aa) does not exceed $50,000.00 in
the aggregate including all other lien waivers not obtained in connection with
prior Applications for Build-Out Advances;
(vii) Promptly
upon preparation and receipt thereof, Borrower shall deliver to Lender copies of
any inspection reports prepared by the Inspecting Architect/Engineer, and/or any
Governmental Authority having jurisdiction over the Improvements;
(viii) Borrower
shall procure and deliver to Lender, if required by Lender, evidence reasonably
satisfactory to Lender that the funds remaining to be advanced by Lender from
the Build-Out Reserve Account under the terms of this Amendment and the
remaining LOC, if applicable, are adequate to meet all costs incurred and to be
incurred in connection with the construction of the Build-Out
Improvements;
(ix) Borrower
shall procure and deliver to Lender inspection reports, in form and substance
reasonably acceptable to Lender, from the Inspecting Architect/Engineer at not
less than thirty (30)-day intervals;
(x) Such
other information and documents as may reasonably be required by Lender or its
counsel; and
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Exhibit 10.1
(xi)
Borrower shall have deposited into the Borrower’s
Deposit such funds as Lender may have required as follows: If Lender
reasonably determines at any time that the unadvanced portion of the Build-Out
Reserve Account and the remaining LOC, if applicable, will be insufficient for
payment in full of (i) the costs of labor, materials, and services required for
the construction of the Build-Out Improvements, (ii) other costs and
expenses specified in the approved Build-Out Budget, and (iii) other costs and
expenses required to be paid in connection with the construction of the
Build-Out Improvements in accordance with the approved Build-Out Plans and any
Governmental Requirements, then Borrower shall, within five (5) Business Days
after written request from Lender, deposit into the Build-Out Reserve Account
such funds as Lender may require. Borrower shall promptly notify
Lender in writing if and when the cost of the construction of the Build-Out
Improvements exceeds, or appears likely to exceed, the amount of the remaining
funds in the Build-Out Deposit Account and the remaining LOC, if
applicable.
(h) Reallocation of Approved
Build-Out Budget. At any time that an Event of Default has
occurred and is continuing, Lender shall have the right from time to time to
make Build-Out Advances which are allocated to any of the designated items in
the approved Build-Out Budget for such other purposes or in such different
proportions as Lender may, in its sole discretion, deem necessary or
advisable. Borrower may not reallocate items of cost or make changes
in the approved Build-Out Budget without the prior written consent of Lender,
except that upon presentation to Lender of reasonable evidence of demonstrated
cost savings in a line item, the Borrower may reallocate the cost savings in
that line item to another line item.
(i) No
Waiver. No Build-Out Advance shall constitute a waiver of any
condition precedent to the obligation of Lender to make any further Build-Out
Advance.
(j) Subordination. Lender
shall not be obligated to make, nor shall Borrower be entitled to receive, any
Build-Out Advance until such time as Lender shall have received, to the extent
requested by Lender, the Contractor Affidavit and Subordination from the
Contractor, and subordination agreements from all other persons furnishing
labor, materials, or services for the design or construction of the Build-Out
Improvements, subordinating to the lien of the Mortgage any lien, claim or
charge which such party may have against Borrower or the Property; provided, however, that
Borrower shall not be obligated to obtain subordination agreements from
subcontractors, laborers or materialmen if (aa) such subcontractor, laborer or
materialmen is expected to furnish labor or material costing less than
$10,000.00 in the aggregate, and (bb) the aggregate total of all labor and
materials for which subordination agreements are not obtained pursuant to the
preceding clause (aa) does not exceed $50,000.00 in the aggregate for all
subcontractors, laborers or materialmen.
5. Deposit
Account.
(a) On
the Amendment Effective Date and in addition to Borrower’s other obligations
hereunder and under the Loan Documents, Borrower shall deposit $300,000.00 into
a deposit account (the “Deposit
Account”) at TCU. The Deposit Account shall be pledged as
additional collateral for the Loan and shall be a no-access account to
Borrower. Borrower shall deposit an additional $300,000.00 into the
Deposit Account on the first day of the next succeeding three (3) quarters (i.e,
on January 4, 2010 [Monday], April 1, 2010 [Thursday], and July 1, 2010
[Thursday]), amounting to a total required deposit of
$1,200,000.00.
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Exhibit 10.1
(b) In
addition to the quarterly deposits into the Deposit Account as described in (a)
above, Borrower shall, on or before the fifteenth (15th) day of
each calendar month, deposit into the Deposit Account all Net Cash Flow derived
from the leasing of units for the previous month. As used herein,
“Net Cash
Flow” shall mean all rental revenues for the preceding month less
reasonable and customary expenses incurred in the operation and maintenance of
the Property during such month.
(c) Prior
to the occurrence of an Event of Default, Lender shall apply any Net Cash Flow
received from Borrower pursuant to (b) above in the following order of
priority: (i) to pay any interest due and payable under the Loan
Documents, (ii) to pay any other Obligations then due and payable under the Loan
Documents in such order as Lender shall determine in its sole and absolute
discretion, and (iii) to reduce the principal balance of the
Loan. From and after the occurrence of an Event of Default, Lender
shall apply any Net Cash Flow received from Borrower to pay any Obligations then
due and payable under the Loan Documents in such order as Lender shall determine
in its sole and absolute discretion.
(d) Borrower
acknowledges and agrees that the Interest Reserve under the Loan Agreement has
been fully utilized. Borrower hereby authorizes and directs Lender,
and Lender shall disburse and charge (or cause to be disbursed and charged) the
Deposit Account to satisfy Borrower’s obligations for the interest payments due
from Borrower under the Loan Agreement on each interest payment date as such
interest payments become due and payable pursuant to the terms of the Loan
Agreement and of the Note, it being the intent of the parties that, prior to the
occurrence of an Event of Default, the Net Cash Flow shall be applied to
interest payments first (as set forth in subsection (c) above) before any
remaining funds in the Deposit Account are applied to interest
payments.
(e) The
failure of Borrower to timely make any deposit required by this Section 5 shall
be an Event of Default under the Loan Agreement.
(f)
Borrower shall have the right to receive advances
of up to $60,000.00 from the Deposit Account to pay for the costs of window
treatments installed as part of the Build-Out Improvements, pursuant to the same
draw procedure as is applicable to advances from the Build-Out Reserve
Account. In addition, Borrower may request that Lender make advances
from the Deposit Account in order to pay for the costs of Build-Out
Improvements, which request Lender may grant or deny in Lender’s sole and
absolute discretion.
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Exhibit 10.1
6. Second Lien on Behringer
Harvard Mountain Village. As a condition precedent to the
effectiveness of this Amendment, Borrower shall cause its affiliate, Behringer
Harvard Mountain Village, LLC (“BH
Mountain Village”), to grant a second lien (the “Second
Lien”) on its property (the “Colorado
Property”) to Lender as additional security for payment of the Loan in
the maximum amount of Twelve Million Six Hundred Thousand Dollars
($12,600,000.00), and (iii) deliver to Lender (v) a signed Officer’s
Certificate confirming that all necessary actions have been taken by BH Mountain
Village to execute such deed of trust and authorize such lien and attaching
copies of supporting resolutions, (w) a solvency certificate in form and
substance reasonably satisfactory to Lender, (x) a mortgagee policy of title
insurance insuring the Second Lien in the amount of $12,600,000.00, with the
premium for such policy paid by BH Mountain Village or Borrower, (y) a legal
opinion from Borrower’s counsel in Texas and Colorado, and (z) such other
documents as Lender shall reasonably require in connection
therewith. For the avoidance of doubt, it is hereby stated and
stipulated that Lender owns a loan that is secured by a first lien on the
Colorado Property and that Lender has consented to the granting of the Second
Lien on the Colorado Property. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents, an
Event of Default under the Second Lien pursuant to Section 3.1(ii) thereof or an
Event of Default arising solely from Borrower’s or BH Mountain Village’s failure
to comply with the provisions of the Second Lien shall not, in and of itself,
constitute an Event of Default under the Loan Agreement or any of the other Loan
Documents; provided, however, upon the occurrence of such an Event of Default
Lender shall have the right to enforce its lien against the property encumbered
by the Second Lien as provided in the Second Lien. Lender agrees to
release such lien in the event the following conditions are
satisfied: (i) no Event of Default shall have occurred and be
continuing under the Loan Agreement, (ii) the principal balance due on the Loan
shall have been reduced to less than Thirteen Million and No/100 Dollars
($13,000,000.00), and (iii) Lender shall have received an appraisal of the
Property, ordered by Lender at Borrower’s sole cost and expense, demonstrating
that the loan-to-value ratio is no greater than fifty percent (50%), not
including the value of the Second Lien on the Colorado
Property. Further, since the Second Lien secures a maximum of Twelve
Million Six Hundred Thousand Dollars ($12,600,000.00), BH Mountain Village
shall be entitled to a release of the Second Lien if BH Mountain Village pays
Lender the amount of Twelve Million Six Hundred Thousand Dollars
($12,600,000.00) for application to the Loan, whether from proceeds of sale of
the Colorado Property or otherwise. In the event that Borrower elects
to construct the Build-Out Improvements, the maximum amount secured by the
Second Lien shall be reduced (from Twelve Million Six Hundred Thousand Dollars
[$12,600,000.00]) by the amount of cash deposited by Borrower in the Build-Out
Reserve Account and the amount of any letter of credit issued for the benefit of
Lender in connection with such Build-Out Improvements and in accordance with the
terms of this Amendment, and in such event the amount of Twelve Million Six
Hundred Thousand Dollars ($12,600,000.00) referenced in this paragraph (and in
the Second Lien document) shall be likewise reduced; provided, however, that in no
event shall the maximum amount secured by the Second Lien be reduced to less
than Ten Million Dollars ($10,000,000.00).
7. Extension of Maturity
Date. The definition of “Maturity Date” in Section 2 of the
Note is hereby revised in its entirety to read as follows:
“Maturity Date” means
October 1, 2011.
8. Deletion of Extension
Option. Section 4(b) of the Note is hereby revised in its
entirety to read as follows:
(b) [Intentionally
Omitted.]
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 10
-
Exhibit 10.1
9. Mandatory Principal
Payments. Borrower shall, (a) on the Amendment Effective Date
and as a condition precedent to the effectiveness of this Amendment, make a
mandatory prepayment on the Loan of Two Hundred Thousand and No/100 Dollars
($200,000.00), and (b) on or before September 30, 2010, make a mandatory
prepayment on the Loan of at least Three Million Twenty Thousand and No/100
Dollars ($3,020,000.00), from the sale or other disposition of the Future
Development Area Unit pursuant to Section 6.3 of the Deed of Trust by satisfying
the terms and conditions thereof or otherwise.
10. Amendment to
Guaranty. As a further condition precedent to the
effectiveness of this Amendment, Borrower shall have caused Behringer Harvard
Short Term Opportunity Fund I LP, a Texas limited partnership to execute a First
Amendment to Guaranty Agreement in the form of Exhibit
C attached hereto.
11. Increase in Interest
Rate. As of the Amendment Effective Date, the definition of
“Applicable Interest Rate” in Section 1 of the Note is hereby revised in its
entirety to read as follows:
“Applicable Interest
Rate” means a floating per annum rate of interest equal, on any day, and
from day-to-day to the lesser of (i) the sum of (a) WSJ Prime, plus (b) one
percent (1.0%), and (ii) the Maximum Rate.
12. Financial Statements and
Reports. In addition to the Financial Statements required by
Section 4.01 of the Loan Agreement (and elsewhere in the Loan Documents),
Borrower shall deliver (or cause to be delivered) the following to
Lender:
(a) On
or before the fifteenth (15th) day of each calendar month, (i) a detailed
accounting of all rental revenue and expenses for the preceding month in form
and substance reasonably satisfactory to Lender (which accounting must be
delivered to Lender regardless of whether any Net Cash Flow is generated during
such month), and (ii) a current rent roll and summary of leasing activity for
the previous month.
(b) Within
forty-five (45) days after the end of each Quarterly Period, statements
evidencing, in a manner reasonably satisfactory to Lender, that Guarantor is in
compliance with the Net Worth Covenant in Section 5(e) of the
Guaranty.
13. Event of
Default. The following is hereby added as new clause (v) in
Article VII:
(v) Behringer
Harvard Short Term Opportunity Fund I LP, a Texas limited partnership, shall
fail to strictly comply with Section 5(e) of its Guaranty, as
amended.
14. Sale of
Property. In the event that Borrower desires to sell the
Property and requests that Lender allow the purchaser to assume the Loan (it
being understood and agreed that Borrower has no right to sell the Property
subject to the Loan), and Lender, in its sole and absolute
discretion, approves an assumption of the Loan by the new owner, and in
connection therewith, a new guarantor satisfactory to Lender in its sole and absolute
discretion assumes in writing the obligations of Guarantor under the
Guaranty, then, in such event, Guarantor shall be released from its obligations
under the Guaranty and the Second Lien shall be terminated.
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 11
-
Exhibit 10.1
15. 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.
16. Confirmation of Loan
Documents. Borrower covenants, represents and warrants to
Lender as follows:
(a) The
principal balance of the Loan as of the Amendment Effective Date is
$25,150,101.06.
(b) To
the best knowledge of Borrower, Borrower is not in default under the Note, the
Deed of Trust, or any other Loan Document after giving effect to the terms of
this Amendment;
(c) Borrower
has no defenses, counter-claims or offsets to the Note, Deed of Trust, or any
other Loan Document, as modified herein;
(d) Borrower
waives any and all defenses, counter-claims, or offsets to the enforcement of
the Note, Deed of Trust, or any other Loan Document, as modified, renewed, and
extended herein, whether known or unknown; and
(e) The
Note, Deed of Trust, and other Loan Documents, as modified, renewed, and
extended herein, are in full force and effect.
17. 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.
18. Borrower’s
Representations. Borrower represents and warrants to Lender,
and covenants and agrees with Lender, as follows:
(a) Borrower
has the power and requisite authority to execute, deliver, and perform its
obligations hereunder and under the Loan Documents, and is duly authorized, and
has taken all necessary action to authorize such person or entity 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 its obligations under such agreements.
(b) The
representations and warranties set forth in the Loan Documents are true and
correct in all material respects as if made on the date hereof, with the
exception of those items specifically listed on Schedule
1 attached hereto and made a part hereof.
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 12
-
Exhibit 10.1
19. 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 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 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.
20. Lender’s
Representations. Lender represents and warrants to Borrower as
follows:
(a) As
of the Amendment Effective Date, Borrower is not in default under Article VII(a)
of the Loan Agreement and to Lender’s current actual knowledge, Borrower is not
in default under any other provision in Article VII of the Loan
Agreement. As used in this section, the words “Lender’s current
actual knowledge” mean and refer to the current actual knowledge of Lender's
sole portfolio manager with stewardship over the Loan as of the Amendment
Effective Date, not in his individual capacity but solely in his capacity as an
officer of Lender, limited to his current consciousness, without any due
diligence, inquiry, or investigation of any kind or duty of inquiry or
investigation and not including any constructive, imputed or implied
knowledge.
(b) 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.
21. 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
Third
Amendment to Note and Loan Agreement
- 13
-
Exhibit 10.1
22. 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.
23. 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.
24. 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.
[Signature Pages
Follow]
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 14
-
Exhibit 10.1
EXECUTED
as of the Amendment Effective Date.
|
BORROWER:
|
||
|
BEHRINGER
HARVARD MOCKINGBIRD COMMONS,
LLC, a Delaware limited
liability company
|
||
|
By:
|
Behringer
Harvard Mockingbird Commons GP, LLC,
|
|
|
a
Texas limited liability company,
|
||
|
its
manager
|
||
|
By:
|
|
|
|
Xxxxxx
X. Xxxxxxx, III
|
||
|
Secretary
|
||
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF DALLAS
|
§
|
This
instrument was acknowledged before me on this ___ day of October, 2009, by
Xxxxxx X. Xxxxxxx, III, as Secretary 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.
|
|
|
Notary
Public in and for the State of
Texas
|
(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 15
-
Exhibit
10.1
EXECUTED
as of the Amendment Effective Date.
|
LENDER:
|
|
|
CREDIT
UNION LIQUIDITY SERVICES, LLC, a Texas limited liability
company
|
|
|
f/k/a
TEXANS COMMERCIAL CAPITAL, LLC
|
|
|
By:
|
|
|
Name:
|
Xxxx
Xxxxxxxxx
|
|
Title:
|
Treasurer
of the Board of
Managers
|
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF DALLAS
|
§
|
This
instrument was acknowledged before me on this ___ day of October, 2009, by Xxxx
Xxxxxxxxx, Treasurer of the Board of Managers of Credit Union Liquidity
Services, LLC, a Texas limited liability company f/k/a Texans Commercial
Capital, LLC, on behalf of said limited liability company.
|
Notary
Public in and for the State of
Texas
|
(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 16
-
Exhibit 10.1
Guarantors
expressly consent to the modifications and terms contained in this
Amendment:
|
GUARANTOR:
|
|
|
BEHRINGER
HARVARD MOCKINGBIRD COMMONS GP, LLC
|
|
|
a
Texas limited liability company
|
|
|
By:
|
|
|
Xxxxxx
X. Xxxxxxx, III
|
|
|
Secretary
|
|
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF DALLAS
|
§
|
This
instrument was acknowledged before me on this ___ day of October, 2009, by
Xxxxxx X. Xxxxxxx, III, as Secretary of Behringer Harvard Mockingbird Commons
GP, LLC, a Texas limited liability company, on behalf of said limited liability
company.
|
|
|
Notary
Public in and for the State of
Texas
|
(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 17
-
Exhibit 10.1
Guarantors
expressly consent to the modifications and terms contained in this
Amendment:
|
GUARANTOR:
|
|
BEHRINGER
HARVARD SHORT-TERM OPPORTUNITY FUND I LP
|
|
a
Texas limited
partnership
|
|
By:
|
Behringer
Harvard Advisors II LP,
|
||
|
a
Texas limited partnership,
|
|||
|
its
general partner
|
|||
|
By:
|
Harvard
Property Trust, LLC
|
||
|
a
Delaware limited liability company,
|
|||
|
its
general partner
|
|||
|
By:
|
|||
|
Xxxxxx
X. Xxxxxxx, III
|
|||
|
Executive
Vice
President
|
|||
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF DALLAS
|
§
|
This
instrument was acknowledged before me on this ___ day of October, 2009, by
Xxxxxx X. Xxxxxxx, III, as Executive Vice President 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.
(SEAL)
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
- 18
-
Exhibit 10.1
Schedule
1
Exceptions to
Representations and Warranties
|
1.
|
With
respect to the representation set forth in Section 3.24 of the Loan
Agreement, certain Leases of the condominium units in the Property
currently exist, written notice of which has previously been given to
Lender.
|
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
-Schedule 1-
Exhibit 10.1
Exhibit
A
List of
Leases
|
Unit
|
Name
|
Start
|
End
|
Monthly
Payment
|
||||||
|
201
|
Xxxxx,
Xxxxxx
|
06/30/09
|
08/31/10
|
$ | 3,350.00 | |||||
|
000
|
Xxxxxx,
Xxxxxxx
|
08/18/09
|
02/28/10
|
$ | 4,186.00 | |||||
|
206
|
Xxxxxxxx,
Xxxxxx
|
04/17/09
|
06/30/10
|
$ | 2,179.00 | |||||
|
301
|
Xxxxxxxx,
Xxxxxx
|
04/17/09
|
06/30/10
|
$ | 3,445.00 | |||||
|
302
|
Xxxxx,
Xxxxx
|
04/28/09
|
05/31/09
|
$ | 3,490.00 | |||||
|
303
|
Frame,
Xxxxxx
|
07/25/09
|
08/31/10
|
$ | 4,055.00 | |||||
|
305
|
Xxxxxxxxx,
Xxxxx
|
10/17/09
|
10/31/10
|
$ | 4,206.00 | |||||
|
000
|
Xxxxxx
& Xxxxx, LLP
|
04/24/09
|
06/30/10
|
$ | 2,199.00 | |||||
|
400
|
Xxxxxxx,
Xxxxxx
|
04/21/09
|
10/31/09
|
$ | 3,775.00 | |||||
|
401
|
Xxxxxx,
Xxxx
|
04/30/09
|
06/30/10
|
$ | 3,790.00 | |||||
|
406
|
Xxxxx,
Xxx
|
05/22/09
|
06/30/10
|
$ | 2,844.00 | |||||
|
502
|
Xxxxxx,
Xxxxx
|
10/08/09
|
09/30/10
|
$ | 3,232.00 | |||||
|
505
|
Xxxxx,
Xxxxxx
|
08/28/09
|
09/30/10
|
$ | 6,336.00 | |||||
|
506
|
Xxxxxx,
Xxxxx
|
06/05/09
|
07/31/10
|
$ | 2,864.00 | |||||
|
600
|
Xxxxxxx,
Xxxxxx
|
04/29/09
|
01/31/10
|
$ | 3,715.00 | |||||
|
601
|
Xxxxxxxxx,
Xxxxxx
|
05/19/09
|
07/31/10
|
$ | 3,430.00 | |||||
|
602
|
Xxxxxx,
Xxxxxxxxx
|
09/04/09
|
05/31/10
|
$ | 3,252.00 | |||||
|
603
|
Xxxxxxx,
Xxxxx
|
05/31/09
|
07/31/10
|
$ | 4,115.00 | |||||
|
606
|
Xxxxxxxxx,
Xxxxxx
|
06/10/09
|
07/31/10
|
$ | 2,884.00 | |||||
|
700
|
Xxxxx,
Xxxxx
|
06/21/09
|
06/30/11
|
$ | 3,635.00 | |||||
|
701
|
Xxxx
Xxxxxxxx Publishing Group, LLC
|
04/25/09
|
06/30/10
|
$ | 3,450.00 | |||||
|
702
|
Xxxxx,
Xxxxxxxx
|
10/08/09
|
09/30/10
|
$ | 3,272.00 | |||||
|
703
|
Xxxxxx,
Xxxxx
|
09/09/09
|
08/31/10
|
$ | 4,135.00 | |||||
|
706
|
Xxxxxx,
Xxxxx
|
08/05/09
|
07/31/10
|
$ | 2,904.00 | |||||
|
800
|
Xxxxx,
Xxxxxxxxxxx
|
06/30/09
|
09/30/10
|
$ | 3,955.00 | |||||
|
801
|
Lunengurg,
Xxxxx
|
04/17/09
|
06/30/10
|
$ | 3,620.00 | |||||
|
802
|
Xxxxx,
Xxxxxx
|
10/16/09
|
07/31/10
|
$ | 3,292.00 | |||||
|
803
|
Xxxxxxxx
Exploration, Inc.
|
06/30/09
|
01/31/10
|
$ | 4,155.00 | |||||
|
804
|
Xxxxxxxx,
Xxxxx
|
10/01/09
|
06/30/10
|
$ | 5,329.00 | |||||
|
805
|
Xxxxxx,
Xxxxxxx
|
09/25/09
|
06/30/10
|
$ | 6,396.00 | |||||
|
806
|
Authentic
Entertainment
|
05/13/09
|
10/31/09
|
$ | 2,924.00 | |||||
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
-Exhibit A-
Exhibit 10.1
Exhibit
B
Letter of Credit
Provisions
|
|
1.
|
If
Borrower elects to use a letter of credit in connection with the Build-Out
Improvements, Borrower shall deliver to Lender an irrevocable, stand-by
letter of credit for the benefit of Lender in an amount equal to the total
amount required to construct the Build-Out Improvements as shown in the
Build-Out Budget less the amount of cash (a minimum of $500,000.00)
initially deposited by Borrower into the Build-Out Reserve Account (as
such may be amended or replaced pursuant to the terms hereof, the “LOC”)
from a financial institution acceptable to Lender in its sole discretion
and in a form acceptable to Lender in its sole
discretion. Lender hereby agrees that Texas Capital Bank is an
acceptable issuer of the LOC. Such LOC shall be held by Lender
as additional collateral for the
Loan.
|
|
|
2.
|
The
LOC shall provide that Lender may draw upon the LOC if an Event of Default
occurs.
|
|
|
3.
|
The
LOC shall provide that it will be honored upon a signed statement by
Lender that Lender is entitled to draw upon the LOC under this Amendment,
and shall require no signature or statement from any party other than
Lender. No notice to Borrower shall be required to enable
Lender to draw upon the LOC.
|
|
|
4.
|
Whenever
the balance of the Build-Out Reserve Account is reduced to an amount below
$100,000.00, Borrower shall, within three (3) Business Days, make an
additional deposit in such account in an amount equal to the lesser of (x)
$500,000.00, and (y) the remaining amount needed to complete construction
of the Build-Out Improvements.
|
|
|
5.
|
Upon
any deposit by Borrower of cash into the Build-Out Reserve Account,
Borrower shall be entitled to deliver to Lender a replacement LOC in an
amount reduced by the amount of such deposit and all earlier deposits to
the Build-Out Reserve Account. By way of example, if the total amount
required constructing the Build-Out Improvements as shown in the Build-Out
Budget is $2,600,000, then Borrower may, in lieu of depositing $2,600,000
in cash into the Build-Out Reserve Account, make an initial cash deposit
of $500,000 into the Build-Out Reserve Account and deliver to Lender an
LOC in the amount of $2,100,000. Upon a subsequent deposit of $500,000
into the Build-Out Reserve Account, Borrower may reduce the LOC by
$500,000 (from $2,100,000 to
$1,600,000).
|
|
|
6.
|
If
the expiration date of the LOC is earlier than the Maturity Date, and if
Borrower fails to obtain and deliver to Lender a satisfactory replacement
LOC or extension at least fifteen (15) days prior to such expiration date,
then Lender may draw upon the full amount of the then-existing LOC without
giving any notice or time to cure to Borrower and deposit the proceeds of
the LOC into the Build-Out Reserve
Account.
|
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
-Exhibit B- Page 1
Exhibit 10.1
|
|
7.
|
If
the financial institution from which Borrower has obtained the LOC shall
admit in writing its inability to pay its debts generally as they become
due, file a petition in bankruptcy or a petition to take advantage of any
insolvency act, make an assignment for the benefit of its creditors,
consent to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or file a petition or answer seeking
reorganization or arrangement under the Federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state thereof, then Borrower shall obtain a replacement LOC within thirty
(30) days of such act from another financial institution reasonably
satisfactory to Lender. If Borrower is unable to obtain a
replacement LOC, then Borrower may deposit an amount equal to the amount
of the LOC into the Build-Out Reserve
Account.
|
|
|
8.
|
No
draw upon the LOC after an Event of Default shall (a) cure, or constitute
a waiver of, an Event of Default, (b) be deemed to fix or determine the
amounts to which Lender is entitled to recover under this Amendment or
otherwise, or (c) be deemed to limit or waive Lender's right to pursue any
other remedies provided for in the Loan
Documents.
|
|
|
9.
|
In
the event of a transfer of Lender's interest in the Loan, Lender shall
have the right to transfer the LOC to the transferee and thereupon shall,
without any further agreement between the parties, be released by Borrower
from all liability therefor, and it is agreed that the provisions hereof
shall apply to every transfer or assignment of the LOC to a new
lender. Borrower shall cooperate with Lender and such
transferee(s) to accomplish any such
transfer.
|
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
-Exhibit B- Page 2
Exhibit 10.1
Exhibit
C
Form of First Amendment to
Guaranty Agreement
[attached]
CULS /
Behringer Harvard Mockingbird Commons, LLC
Third
Amendment to Note and Loan Agreement
-Exhibit C-
